Overall Indemnity. The parties intend that the payments in the nature of compensation to be made by CBI to Executive under this Agreement shall be reasonable compensation for personal services to be rendered on or after the date of the Change in Control, including payments to an individual as damages for breach of contract, within the meaning of Section 280G(b)(4)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In the event that notwithstanding the previous sentence any excise tax under Section 4999 of the Code is imposed on Executive as a direct or indirect result of payments made by CBI or its affiliates, whether or not such payments are made pursuant to this Agreement, CBI shall pay Executive an amount or, from time to time, amounts, equal to (i) the sum of all excise taxes imposed on Executive in respect of such payments, plus (ii) the aggregate amount of any interest, penalties, fines or additions to any tax which are imposed in connection with the imposition of such excise tax, plus (iii) all income and excise taxes imposed on Executive under the laws of any United States Federal, state or local government or taxing authority by reason of the payments required under clause (i) and clause (ii) and this clause (iii). CBI's obligation to pay such amounts to Executive pursuant to this Section 7 shall continue for the period specified in Section 6501 of the Code during which a tax may be assessed under Section 4999 of the Code (including any extensions of such period provided under Section 6503(a)(1) of the Code or requested by the Internal Revenue Service in connection with an audit of one or more of Executive's tax returns). If the Internal Revenue Service makes a claim against Executive which, if successful, would require CBI to make a payment under this Section 7, Executive agrees to contest the claim on request of CBI subject to the following conditions: (a) Executive shall notify CBI of any such claim within 10 days of becoming aware thereof. In the event CBI desires the claim to be contested, it shall promptly (but in no event more than 30 days after the notice from Executive or such shorter time as the Internal Revenue Service may specify for responding to such claim) request Executive to contest the claim. Executive shall not make any payment of any tax which is the subject of the claim before Executive has given the notice or during the 30-day period thereafter unless Executive receives written instructions from CBI to make such payment together with an advance of funds sufficient to make the requested payment plus any amounts determined pursuant to clause (ii) and clause (iii) above as if such advance were an amount described in clause (i) above, in which case Executive will act promptly in accordance with such instructions. (b) If CBI so requests, Executive will contest the claim by, at the direction of CBI, either paying the tax claimed and suing for a refund in the appropriate court or contesting the claim in the United States Tax Court; provided, however, that any request by CBI for Executive to pay the tax shall be accompanied by an advance from CBI to Executive of funds sufficient to make the requested payment plus any amounts determined pursuant to clause (ii) and clause (iii) above as if such advance were an amount described in clause (i) above. If directed by CBI in writing Executive will take all action necessary to compromise or settle the claim, but in no event will Executive compromise or settle the claim or cease to contest the claim without the written consent of CBI; provided, however, that Executive may take any such action if Executive waives in writing his right to a payment under this Section 7 for any amounts payable in connection with such claim. Executive agrees to cooperate in good faith with CBI in contesting the claim and to comply with any reasonable request from CBI concerning the contest of the claim, including the pursuit of administrative remedies, the appropriate forum for any judicial proceeding, and the legal basis for contesting the claim. Upon request of CBI, Executive shall take appropriate appeals of any judgment or decision that would require CBI to make a payment under this Section 7. Provided that Executive is in compliance with the provisions of this section, CBI shall be liable for and indemnify Executive against any loss in connection with all costs and expenses, including attorneys' fees, which may be incurred as a result of contesting the claim, and shall provide to Executive within 30 days after each written request therefor by the Executive cash advances or reimbursement for all such costs and expenses actually incurred or reasonably expected to be incurred by the Executive as a result of contesting the claim. (c) If CBI requests that Executive contest a claim and otherwise complies with its obligations under this Section 7, it shall, except as otherwise stipulated in this Section 7, have no obligation to pay any amounts under Section 7 in respect of the claim until final determination occurs regarding Executive's liability under the claim. CBI's obligation to pay amounts under this Section 7 will be reduced by any refund obtained by Executive and interest paid thereon. 7. Section 9 of the Agreement is amended to read as follows: If during the Employment Period Executive accepts other employment in a position substantially equivalent to or better than the position held by him with CBI, compensation actually received by the Executive during the Employment Period from such other employment shall be applied to reduce Termination payments otherwise due under subsections (a) and (c) of Section 6 of this Agreement; and coverage of the Executive under employee benefit plans described in subsection (x) of Section 6 of this Agreement shall be reduced or eliminated to the extent Executive is covered under similar plans incident to such other employment. In the event of any reduction under this Section 9 of Termination payments already paid by CBI to Executive, Executive shall upon 30 days written request from CBI repay to CBI the amount by which such Termination payment is reduced, without interest, and further reduced by any taxes attributable to such Termination payments to the extent Executive cannot recover such taxes through deductions of equivalent or greater value. Nothing in this Section 9 shall be construed to require Executive in mitigation of damages to accept employment in a position not substantially equivalent to or better than position held by him with CBI or to accept employment more than reasonable daily commuting distance from the principal residence of the Executive as of the date of Termination. CBI INDUSTRIES, INC. /s/ C.E. Xxxxxxxxxx, Xx. ------------------------------------ Executive By:/s/ John X. Xxxxx Title: Senior Vice President ------------------------------- Title: Chairman of the Board ATTEST: /s/ Donaxx X. Xxxxxxxxx ---------------------------------- Secretary (SEAL)
Appears in 1 contract
Samples: Change in Control Agreement (Cbi Industries Inc /De/)
Overall Indemnity. The parties intend that the payments in the nature of compensation to be made by CBI to Executive under this Agreement shall be reasonable compensation for personal services to be rendered on or after the date of the Change in Control, including payments to an individual as damages for breach of contract, within the meaning of Section 280G(b)(4)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In the event that notwithstanding the previous sentence any excise tax under Section 4999 of the Code is imposed on Executive as a direct or indirect result of payments made by CBI or its affiliates, whether or not such payments are made pursuant to this Agreement, CBI shall pay Executive an amount or, from time to time, amounts, equal to (i) the sum of all excise taxes imposed on Executive in respect of such payments, plus (ii) the aggregate amount of any interest, penalties, fines or additions to any tax which are imposed in connection with the imposition of such excise tax, plus (iii) all income and excise taxes imposed on Executive under the laws of any United States Federal, state or local government or taxing authority by reason of the payments required under clause (i) and clause (ii) and this clause (iii). CBI's obligation to pay such amounts to Executive pursuant to this Section 7 shall continue for the period specified in Section 6501 of the Code during which a tax may be assessed under Section 4999 of the Code (including any extensions of such period provided under Section 6503(a)(1) of the Code or requested by the Internal Revenue Service in connection with an audit of one or more of Executive's tax returns). If the Internal Revenue Service makes a claim against Executive which, if successful, would require CBI to make a payment under this Section 7, Executive agrees to contest the claim on request of CBI subject to the following conditions:
(a) Executive shall notify CBI of any such claim within 10 days of becoming aware thereof. In the event CBI desires the claim to be contested, it shall promptly (but in no event more than 30 days after the notice from Executive or such shorter time as the Internal Revenue Service may specify for responding to such claim) request Executive to contest the claim. Executive shall not make any payment of any tax which is the subject of the claim before Executive has given the notice or during the 30-day period thereafter unless Executive receives written instructions from CBI to make such payment together with an advance of funds sufficient to make the requested payment plus any amounts determined pursuant to clause (ii) and clause (iii) above as if such advance were an amount described in clause (i) above, in which case Executive will act promptly in accordance with such instructions.
(b) If CBI so requests, Executive will contest the claim by, at the direction of CBI, either paying the tax claimed and suing for a refund in the appropriate court or contesting the claim in the United States Tax Court; provided, however, that any request by CBI for Executive to pay the tax shall be accompanied by an advance from CBI to Executive of funds sufficient to make the requested payment plus any amounts determined pursuant to clause (ii) and clause (iii) above as if such advance were an amount described in clause (i) above. If directed by CBI in writing Executive will take all action necessary to compromise or settle the claim, but in no event will Executive compromise or settle the claim or cease to contest the claim without the written consent of CBI; provided, however, that Executive may take any such action if Executive waives in writing his right to a payment under this Section 7 for any amounts payable in connection with such claim. Executive agrees to cooperate in good faith with CBI in contesting the claim and to comply with any reasonable request from CBI concerning the contest of the claim, including the pursuit of administrative remedies, the appropriate forum for any judicial proceeding, and the legal basis for contesting the claim. Upon request of CBI, Executive shall take appropriate appeals of any judgment or decision that would require CBI to make a payment under this Section 7. Provided that Executive is in compliance with the provisions of this section, CBI shall be liable for and indemnify Executive against any loss in connection with all costs and expenses, including attorneys' fees, which may be incurred as a result of contesting the claim, and shall provide to Executive within 30 days after each written request therefor by the Executive cash advances or reimbursement for all such costs and expenses actually incurred or reasonably expected to be incurred by the Executive as a result of contesting the claim.
(c) If CBI requests that Executive contest a claim and otherwise complies with its obligations under this Section 7, it shall, except as otherwise stipulated in this Section 7, have no obligation to pay any amounts under Section 7 in respect of the claim until final determination occurs regarding Executive's liability under the claim. CBI's obligation to pay amounts under this Section 7 will be reduced by any refund obtained by Executive and interest paid thereon.
7. Section 9 of the Agreement is amended to read as follows: If during the Employment Period Executive accepts other employment in a position substantially equivalent to or better than the position held by him with CBI, compensation actually received by the Executive during the Employment Period from such other employment shall be applied to reduce Termination payments otherwise due under subsections (a) and (c) of Section 6 of this Agreement; and coverage of the Executive under employee benefit plans described in subsection (x) of Section 6 of this Agreement shall be reduced or eliminated to the extent Executive is covered under similar plans incident to such other employment. In the event of any reduction under this Section 9 of Termination payments already paid by CBI to Executive, Executive shall upon 30 days written request from CBI repay to CBI the amount by which such Termination payment is reduced, without interest, and further reduced by any taxes attributable to such Termination payments to the extent Executive cannot recover such taxes through deductions of equivalent or greater value. Nothing in this Section 9 shall be construed to require Executive in mitigation of damages to accept employment in a position not substantially equivalent to or better than position held by him with CBI or to accept employment more than reasonable daily commuting distance from the principal residence of the Executive as of the date of Termination. CBI INDUSTRIES, INC. /s/ C.E. Xxxxxxxxxx, Xx. ------------------------------------ Executive By:/s/ John X. Xxxxx Title: Senior Vice President ------------------------------- Title: Chairman of the Board ATTEST: /s/ Donaxx X. Xxxxxxxxx ---------------------------------- Secretary (SEAL)
Appears in 1 contract
Samples: Change in Control Agreement (Cbi Industries Inc /De/)
Overall Indemnity. The parties intend that the payments in the nature of compensation to be made by CBI to Executive under this Agreement shall be reasonable compensation for personal services to be rendered on or after the date of the Change in Control, including payments to an individual as damages for breach of contract, within the meaning of Section 280G(b)(4)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In the event that notwithstanding the previous sentence any excise tax under Section 4999 of the Code is imposed on Executive as a direct or indirect result of payments made by CBI or its affiliates, whether or not such payments are made pursuant to this Agreement, CBI shall pay Executive an amount or, from time to time, amounts, equal to (i) the sum of all excise taxes imposed on Executive in respect of such payments, plus (ii) the aggregate amount of any interest, penalties, fines or additions to any tax which are imposed in connection with the imposition of such excise tax, plus (iii) all income and excise taxes imposed on Executive under the laws of any United States Federal, state or local government or taxing authority by reason of the payments required under clause (i) and clause (ii) and this clause (iii). CBI's obligation to pay such amounts to Executive pursuant to this Section 7 shall continue for the period specified in Section 6501 of the Code during which a tax may be assessed under Section 4999 of the Code (including any extensions of such period provided under Section 6503(a)(1) of the Code or requested by the Internal Revenue Service in connection with an audit of one or more of Executive's tax returns). If the Internal Revenue Service makes a claim against Executive which, if successful, would require CBI to make a payment under this Section 7, Executive agrees to contest the claim on request of CBI subject to the following conditions:
(a) Executive shall notify CBI of any such claim within 10 days of becoming aware thereof. In the event CBI desires the claim to be contested, it shall promptly (but in no event more than 30 days after the notice from Executive or such shorter time as the Internal Revenue Service may specify for responding to such claim) request Executive to contest the claim. Executive shall not make any payment of any tax which is the subject of the claim before Executive has given the notice or during the 30-day period thereafter unless Executive receives written instructions from CBI to make such payment together with an advance of funds sufficient to make the requested payment plus any amounts determined pursuant to clause (ii) and clause (iii) above as if such advance were an amount described in clause (i) above, in which case Executive will act promptly in accordance with such instructions.
(b) If CBI so requests, Executive will contest the claim by, at the direction of CBI, either paying the tax claimed and suing for a refund in the appropriate court or contesting the claim in the United States Tax Court; provided, however, that any request by CBI for Executive to pay the tax shall be accompanied by an advance from CBI to Executive of funds sufficient to make the requested payment plus any amounts determined pursuant to clause (ii) and clause (iii) above as if such advance were an amount described in clause (i) above. If directed by CBI in writing Executive will take all action necessary to compromise or settle the claim, but in no event will Executive compromise or settle the claim or cease to contest the claim without the written consent of CBI; provided, however, that Executive may take any such action if Executive waives in writing his right to a payment under this Section 7 for any amounts payable in connection with such claim. Executive agrees to cooperate in good faith with CBI in contesting the claim and to comply with any reasonable request from CBI concerning the contest of the claim, including the pursuit of administrative remedies, the appropriate forum for any judicial proceeding, and the legal basis for contesting the claim. Upon request of CBI, Executive shall take appropriate appeals of any judgment or decision that would require CBI to make a payment under this Section 7. Provided that Executive is in compliance with the provisions of this section, CBI shall be liable for and indemnify Executive against any loss in connection with all costs and expenses, including attorneys' fees, which may be incurred as a result of contesting the claim, and shall provide to Executive within 30 days after each written request therefor by the Executive cash advances or reimbursement for all such costs and expenses actually incurred or reasonably expected to be incurred by the Executive as a result of contesting the claim.
(c) If CBI requests that Executive contest a claim and otherwise complies with its obligations under this Section 7, it shall, except as otherwise stipulated in this Section 7, have no obligation to pay any amounts under Section 7 in respect of the claim until final determination occurs regarding Executive's liability under the claim. CBI's obligation to pay amounts under this Section 7 will be reduced by any refund obtained by Executive and interest paid thereon.
7. Section 9 of the Agreement is amended to read as follows: If during the Employment Period Executive accepts other employment in a position substantially equivalent to or better than the position held by him with CBI, compensation actually received by the Executive during the Employment Period from such other employment shall be applied to reduce Termination payments otherwise due under subsections (a) and (c) of Section 6 of this Agreement; and coverage of the Executive under employee benefit plans described in subsection (x) of Section 6 of this Agreement shall be reduced or eliminated to the extent Executive is covered under similar plans incident to such other employment. In the event of any reduction under this Section 9 of Termination payments already paid by CBI to Executive, Executive shall upon 30 days written request from CBI repay to CBI the amount by which such Termination payment is reduced, without interest, and further reduced by any taxes attributable to such Termination payments to the extent Executive cannot recover such taxes through deductions of equivalent or greater value. Nothing in this Section 9 shall be construed to require Executive in mitigation of damages to accept employment in a position not substantially equivalent to or better than position held by him with CBI or to accept employment more than reasonable daily commuting distance from the principal residence of the Executive as of the date of Termination. CBI INDUSTRIES, INC. /s/ C.E. Xxxxxxxxxx, Xx. ------------------------------------ Executive By:/s/ John X. Xxxxx Title: Senior Vice President ------------------------------- Title: Chairman of the Board ATTEST: /s/ Donaxx X. Xxxxxxxxx ---------------------------------- Secretary (SEAL)
Appears in 1 contract
Samples: Change in Control Agreement (Cbi Industries Inc /De/)
Overall Indemnity. The parties intend that the payments in the nature of compensation to be made by CBI to Executive under this Agreement shall be reasonable compensation for personal services to be rendered on or after the date of the Change in Control, including payments to an individual as damages for breach of contract, within the meaning of Section 280G(b)(4)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In the event that notwithstanding the previous sentence any excise tax under Section 4999 of the Code is imposed on Executive as a direct or indirect result of payments made by CBI or its affiliates, whether or not such payments are made pursuant to this Agreement, CBI shall pay Executive an amount or, from time to time, amounts, equal to (i) the sum of all excise taxes imposed on Executive in respect of such payments, plus (ii) the aggregate amount of any interest, penalties, fines or additions to any tax which are imposed in connection with the imposition of such excise tax, plus (iii) all income and excise taxes imposed on Executive under the laws of any United States Federal, state or local government or taxing authority by reason of the payments required under clause (i) and clause (ii) and this clause (iii). CBI's obligation to pay such amounts to Executive pursuant to this Section 7 shall continue for the period specified in Section 6501 of the Code during which a tax may be assessed under Section 4999 of the Code (including any extensions of such period provided under Section 6503(a)(1) of the Code or requested by the Internal Revenue Service in connection with an audit of one or more of Executive's tax returns). If the Internal Revenue Service makes a claim against Executive which, if successful, would require CBI to make a payment under this Section 7, Executive agrees to contest the claim on request of CBI subject to the following conditions:
(a) Executive shall notify CBI of any such claim within 10 days of becoming aware thereof. In the event CBI desires the claim to be contested, it shall promptly (but in no event more than 30 days after the notice from Executive or such shorter time as the Internal Revenue Service may specify for responding to such claim) request Executive to contest the claim. Executive shall not make any payment of any tax which is the subject of the claim before Executive has given the notice or during the 30-day period thereafter unless Executive receives written instructions from CBI to make such payment together with an advance of funds sufficient to make the requested payment plus any amounts determined pursuant to clause (ii) and clause (iii) above as if such advance were an amount described in clause (i) above, in which case Executive will act promptly in accordance with such instructions.
(b) If CBI so requests, Executive will contest the claim by, at the direction of CBI, either paying the tax claimed and suing for a refund in the appropriate court or contesting the claim in the United States Tax Court; provided, however, that any request by CBI for Executive to pay the tax shall be accompanied by an advance from CBI to Executive of funds sufficient to make the requested payment plus any amounts determined pursuant to clause (ii) and clause (iii) above as if such advance were an amount described in clause (i) above. If directed by CBI in writing Executive will take all action necessary to compromise or settle the claim, but in no event will Executive compromise or settle the claim or cease to contest the claim without the written consent of CBI; provided, however, that Executive may take any such action if Executive waives in writing his right to a payment under this Section 7 for any amounts payable in connection with such claim. Executive agrees to cooperate in good faith with CBI in contesting the claim and to comply with any reasonable request from CBI concerning the contest of the claim, including the pursuit of administrative remedies, the appropriate forum for any judicial proceeding, and the legal basis for contesting the claim. Upon request of CBI, Executive shall take appropriate appeals of any judgment or decision that would require CBI to make a payment under this Section 7. Provided that Executive is in compliance with the provisions of this section, CBI shall be liable for and indemnify Executive against any loss in connection with all costs and expenses, including attorneys' fees, which may be incurred as a result of contesting the claim, and shall provide to Executive within 30 days after each written request therefor by the Executive cash advances or reimbursement for all such costs and expenses actually incurred or reasonably expected to be incurred by the Executive as a result of contesting the claim.
(c) If CBI requests that Executive contest a claim and otherwise complies with its obligations under this Section 7, it shall, except as otherwise stipulated in this Section 7, have no obligation to pay any amounts under Section 7 in respect of the claim until final determination occurs regarding Executive's liability under the claim. CBI's obligation to pay amounts under this Section 7 will be reduced by any refund obtained by Executive and interest paid thereon.
7. Section 9 of the Agreement is amended to read as follows: If during the Employment Period Executive accepts other employment in a position substantially equivalent to or better than the position held by him with CBI, compensation actually received by the Executive during the Employment Period from such other employment shall be applied to reduce Termination payments otherwise due under subsections (a) and (c) of Section 6 of this Agreement; and coverage of the Executive under employee benefit plans described in subsection (x) of Section 6 of this Agreement shall be reduced or eliminated to the extent Executive is covered under similar plans incident to such other employment. In the event of any reduction under this Section 9 of Termination payments already paid by CBI to Executive, Executive shall upon 30 days written request from CBI repay to CBI the amount by which such Termination payment is reduced, without interest, and further reduced by any taxes attributable to such Termination payments to the extent Executive cannot recover such taxes through deductions of equivalent or greater value. Nothing in this Section 9 shall be construed to require Executive in mitigation of damages to accept employment in a position not substantially equivalent to or better than position held by him with CBI or to accept employment more than reasonable daily commuting distance from the principal residence of the Executive as of the date of Termination. CBI INDUSTRIES, INC. /s/ C.E. Xxxxxxxxxx, Xx. ------------------------------------ Executive By:/s/ John X. Xxxxx Title: Senior Vice President ------------------------------- Title: Chairman of the Board ATTEST: /s/ Donaxx X. Xxxxxxxxx ---------------------------------- Secretary (SEAL)
Appears in 1 contract
Samples: Executive Employment Agreement (Cbi Industries Inc /De/)
Overall Indemnity. The parties intend that the payments in the nature of compensation to be made by CBI to Executive under this this. Agreement shall be reasonable compensation for personal services to be rendered on or after the date of the Change in Control, including payments to an individual as damages for breach of contract, within the meaning of Section 280G(b)(4)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In the event that notwithstanding the previous sentence any excise tax under Section 4999 of the Code is imposed on Executive as a direct or indirect result of payments made by CBI or its affiliates, whether or not such payments are made pursuant to this Agreement, CBI shall pay Executive an amount or, from time to time, amounts, equal to (i) the sum of all excise taxes imposed on Executive in respect of such payments, plus (ii) the aggregate amount of any interest, penalties, fines or additions to any tax which are imposed in connection with the imposition of such excise tax, plus (iii) all income and excise taxes imposed on Executive under the laws of any United States Federal, state or local government or taxing authority by reason of the payments required under clause (i) and clause (ii) and this clause (iii). CBI's obligation to pay such amounts to Executive pursuant to this Section 7 shall continue for the period specified in Section 6501 of the Code during which a tax may be assessed under Section 4999 of the Code (including any extensions of such period provided under Section 6503(a)(16503(a)(i) of the Code or requested by the Internal Revenue Service in connection with an audit of one or more of Executive's tax returns). If the Internal Revenue Service makes a claim against Executive which, if successful, would require CBI to make a payment under this Section 7, Executive agrees to contest the claim on request of CBI subject to the following conditions:
(a) Executive shall notify CBI of any such claim within 10 days of becoming aware thereof. In the event CBI desires the claim to be contested, it shall promptly (but in no event more than 30 days after the notice from Executive or such shorter time as the Internal Revenue Service may specify for responding to such claim) request Executive to contest the claim. Executive shall not make any payment of any tax which is the subject of the claim before Executive has given the notice or during the 30-day period thereafter unless Executive receives written instructions from CBI to make such payment together with an advance of funds sufficient to make the requested payment plus any amounts determined pursuant to clause (ii) and clause (iii) above as if such advance were an amount described in clause (i) above, in which case Executive will act promptly in accordance with such instructions.
(b) If CBI so requests, Executive will contest the claim by, at the direction of CBI, either paying the tax claimed and suing for a refund in the appropriate court or contesting the claim in the United States Tax Court; provided, however, that any request by CBI for Executive to pay the tax shall be accompanied by an advance from CBI to Executive of funds sufficient to make the requested payment plus any amounts determined pursuant to clause (ii) and clause (iii) above as if such advance were an amount described in clause (i) above. If directed by CBI in writing Executive will take all action necessary to compromise or settle the claim, but in no event will Executive compromise or settle the claim or cease to contest the claim without the written consent of CBI; provided, however, that Executive may take any such action if Executive waives in writing his right to a payment under this Section 7 for any amounts payable in connection with such claim. Executive agrees to cooperate in good faith with CBI in contesting the claim and to comply with any reasonable request from CBI concerning the contest of the claim, including the pursuit of administrative remedies, the appropriate forum for any judicial proceeding, and the legal basis for contesting the claim. Upon request of CBI, Executive shall take appropriate appeals of any judgment or decision that would require CBI to make a payment under this Section 7. Provided that Executive is in compliance with the provisions of this section, CBI shall be liable for and indemnify Executive against any loss in connection with all costs and expenses, including attorneys' fees, which may be incurred as a result of contesting the claim, and shall provide to Executive within 30 days after each written request therefor by the Executive cash advances or reimbursement for all such costs and expenses actually incurred or reasonably expected to be incurred by the Executive as a result of contesting the claim.
(c) If CBI requests that Executive contest a claim and otherwise complies with its obligations under this Section 7, it shall, except as otherwise stipulated in this Section 7, have no obligation to pay any amounts under Section 7 in respect of the claim until final determination occurs regarding Executive's liability under the claim. CBI's obligation to pay amounts under this Section 7 will be reduced by any refund obtained by Executive and interest paid thereon.
7. Section 9 of the Agreement is amended to read as follows: If during the Employment Period Executive accepts other employment in a position substantially equivalent to or better than the position held by him with CBI, compensation actually received by the Executive during the Employment Period from such other employment shall be applied to reduce Termination payments otherwise due under subsections (a) and (c) of Section 6 of this Agreement; and coverage of the Executive under employee benefit plans described in subsection (x) of Section 6 of this Agreement shall be reduced or eliminated to the extent Executive is covered under similar plans incident to such other employment. In the event of any reduction under this Section 9 of Termination payments already paid by CBI to Executive, Executive shall upon 30 days written request from CBI repay to CBI the amount by which such Termination payment is reduced, without interest, and further reduced by any taxes attributable to such Termination payments to the extent Executive cannot recover such taxes through deductions of equivalent or greater value. Nothing in this Section 9 shall be construed to require Executive in mitigation of damages to accept employment in a position not substantially equivalent to or better than position held by him with CBI or to accept employment more than reasonable daily commuting distance from the principal residence of the Executive as of the date of Termination. CBI INDUSTRIES, INC. /s/ C.E. Xxxxxxxxxx, Xx. ------------------------------------ Executive By:/s/ John X. Xxxxx Title: Senior Vice President ------------------------------- Title: Chairman of the Board ATTEST: /s/ Donaxx X. Xxxxxxxxx ---------------------------------- Secretary (SEAL)
Appears in 1 contract
Overall Indemnity. The parties intend that the payments in the nature of compensation to be made by CBI to Executive under this Agreement shall be reasonable compensation for personal services to be rendered on or after the date of the Change in Control, including payments to an individual as damages for breach of contract, within the meaning of Section 280G(b)(4)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In the event that notwithstanding the previous sentence any excise tax under Section 4999 of the Code is imposed on Executive as a direct or indirect result of payments made by CBI or its affiliates, whether or not such payments are made pursuant to this Agreement, CBI shall pay Executive an amount or, from time to time, amounts, equal to (i) the sum of all excise taxes imposed on Executive in respect of such payments, plus (ii) the aggregate amount of any interest, penalties, fines or additions to any tax which are imposed in connection with the imposition of such excise tax, plus (iii) all income and excise taxes imposed on Executive under the laws of any United States Federal, state or local government or taxing authority by reason of the payments required under clause (i) and clause (ii) and this clause (iii). CBI's obligation to pay such amounts to Executive pursuant to this Section 7 shall continue for the period specified in Section 6501 of the Code during which a tax may be assessed under Section 4999 of the Code (including any extensions of such period provided under Section 6503(a)(1) of the Code or requested by the Internal Revenue Service in connection with an audit of one or more of Executive's tax returns). If the Internal Revenue Service makes a claim against Executive which, if successful, would require CBI to make a payment under this Section 7, Executive agrees to contest the claim on request of CBI subject to the following conditions:
(a) Executive shall notify CBI of any such claim within 10 days of becoming aware thereof. In the event CBI desires the claim to be contested, it shall promptly (but in no event more than 30 days after the notice from Executive or such shorter time as the Internal Revenue Service may specify for responding to such claim) request Executive to contest the claim. Executive shall not make any payment of any tax which is the subject of the claim before Executive has given the notice or during the 30-day period thereafter unless Executive receives written instructions from CBI to make such payment together with an advance of funds sufficient to make the requested payment plus any amounts determined pursuant to clause (iiil) and clause (iii) above as if such advance were an amount described in clause (i) above, in which case Executive will act promptly in accordance with such instructions.
(b) If CBI so requests, Executive will contest the claim by, at the direction of CBI, either paying the tax claimed and suing for a refund in the appropriate court or contesting the claim in the United States Tax Court; provided, however, that any request by CBI for Executive to pay the tax shall be accompanied by an advance from CBI to Executive of funds sufficient to make the requested payment plus any amounts determined pursuant to clause (ii) and clause (iii) above as if such advance were an amount described in clause (i) above. If directed by CBI in writing Executive will take all action necessary to compromise or settle the claim, but in no event will Executive compromise or settle the claim claim, or cease to contest the claim without the written consent of CBI; provided, however, that Executive may take any such action if Executive waives in writing his right to a payment under this Section 7 for any amounts payable in connection with such claim. Executive agrees to cooperate in good faith with CBI in contesting the claim and to comply with any reasonable request from CBI concerning the contest of the claim, including the pursuit of administrative remedies, the appropriate forum for any judicial proceeding, and the legal basis for contesting the claim. Upon request of CBI, Executive shall take appropriate appeals of any judgment or decision that would require CBI to make a payment under this Section 7. Provided that Executive is in compliance with the provisions of this section, CBI shall be liable for and indemnify Executive against any loss in connection with all costs and expenses, including attorneys' fees, which may be incurred as a result of contesting the claim, and shall provide to Executive within 30 days after each written request therefor by the Executive cash advances or reimbursement for all such costs and expenses actually incurred or reasonably expected to be incurred by the Executive as a result of contesting the claim.
(c) If CBI requests that Executive contest a claim and otherwise complies with its obligations under this Section 7, it shall, except as otherwise stipulated in this Section 7, have no obligation to pay any amounts under Section 7 in respect of the claim until final determination occurs regarding Executive's liability under the claim. CBI's obligation to pay amounts under this Section 7 will be reduced by any refund obtained by Executive and interest paid thereon.
7. Section 9 of the Agreement is amended to read as follows: If during the Employment Period Executive accepts other employment in a position substantially equivalent to or better than the position held by him with CBI, compensation actually received by the Executive during the Employment Period from such other employment shall be applied to reduce Termination payments otherwise due under subsections (a) and (c) of Section 6 of this Agreement; and coverage of the Executive under employee benefit plans described in subsection (x) of Section 6 of this Agreement shall be reduced or eliminated to the extent Executive is covered under similar plans incident to such other employment. In the event of any reduction under this Section 9 of Termination payments already paid by CBI to Executive, Executive shall upon 30 days written request from CBI repay to CBI the amount by which such Termination payment is reduced, without interest, and further reduced by any taxes attributable to such Termination payments to the extent Executive cannot recover such taxes through deductions of equivalent or greater value. Nothing in this Section 9 shall be construed to require Executive in mitigation of damages to accept employment in a position not substantially equivalent to or better than position held by him with CBI or to accept employment more than reasonable daily commuting distance from the principal residence of the Executive as of the date of Termination. CBI INDUSTRIES, INC. /s/ C.E. Xxxxxxxxxx, Xx. ------------------------------------ Executive By:/s/ John X. Xxxxx Title: Senior Vice President ------------------------------- Title: Chairman of the Board ATTEST: /s/ Donaxx X. Xxxxxxxxx ---------------------------------- Secretary (SEAL)
Appears in 1 contract
Samples: Change in Control Agreement (Cbi Industries Inc /De/)
