Section 280G Provisions Sample Clauses

Section 280G Provisions. Notwithstanding anything in this Agreement to the contrary, to the extent that any payments and benefits called for under this Agreement, together with any other payments and benefits made available to Executive by the Post Group (collectively, the “Payments”), will result in Executive’s being subject to an excise tax under § 4999 of the Code, then a determination shall be made regarding which of the following options would be more advantageous to Executive, after paying all applicable taxes (including any applicable tax under § 4999 of the Code) (the “Determination”): (i) to receive all of the Payments, or (ii) to receive the portion of the Payments that in the aggregate is One Dollar ($1.00) less than the amount which would cause the Payments to be subject to the excise tax imposed by § 4999 of the Code (the “Safe Harbor Amount”). The Determination required under this § 13 shall be made at the expense of Post by a firm of independent accountants selected by Post and reasonably acceptable to Executive. If the Determination is that it would be more advantageous to Executive after paying all applicable taxes to receive all of the Payments pursuant to § 13(i), then such Payments shall be made to Executive in accordance with the terms of this Agreement. If the Determination is that it would be more advantageous to Executive after paying all applicable taxes to receive the Safe Harbor Amount pursuant to § 13(ii), then only the Safe Harbor Amount shall be paid to Executive in accordance with the terms of this Agreement. In the event the Safe Harbor Amount pursuant to § 13(ii) is to be paid to Executive, the Payments to which Executive would otherwise be entitled to under this Agreement shall be reduced in the following order: (1) any cash severance benefits provided under § 6.1(a), (2) any acceleration of vesting of stock options or restricted stock provided under § 6.1(b), (3) any benefits provided under § 6.1(c), and (4) any other Payments under the Agreement. Any Determination under this § 13 shall be made in accordance with a reasonable interpretation and application of § 280G of the Code and any applicable related regulations (whether proposed, temporary, or final) and any related Internal Revenue Service rulings and any related case law. If the Post Group reasonably requests that Executive take action to mitigate or challenge any tax or assessment and Executive complies with such request, the Post Group shall provide Executive with such information and su...

Section 280G Provisions. Notwithstanding anything contained in this Agreement to the contrary, to the extent that any payment or distribution of any type to or for the Executive by the Company, or any subsidiary or affiliate of the Company, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or restricted stock granted pursuant to this Agreement or otherwise) (collectively, the “Total Payments”) is or will be subject to the excise tax (“Excise Tax”) imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (or any successor to such Section), the Company shall pay to the Executive, at the time the Executive pays any Excise Tax with respect to any of such Total Payments (which may be at the time the Company withholds Excise Tax from any payments or at the time he files his annual federal income tax return for a year in which Excise Tax is due or payable), an additional amount (a “Gross-Up Payment”) which is, after the imposition of all income, employment, excise and other taxes, penalties and interest thereon, equal to the sum of (i) the Excise Tax on such Total Payments plus (ii) any penalty and interest assessments associated with such Excise Tax. The determination of whether any portion of the Total Payments is subject to an Excise Tax and, if so, the amount and time of any Gross-Up Payment pursuant to this Section 8.3 shall be made by an independent auditor (the “Auditor”) jointly selected by the Executive and the Company and paid by the Company. If the Executive and the Company cannot agree on the firm to serve as the Auditor, then they shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor. Unless the Executive agrees otherwise in writing, the Auditor shall be a nationally recognized United States public accounting firm that has not during the two years preceding the date of its selection, acted in any way on behalf of the Company. The Parties shall cooperate with each other in connection with any proceeding or claim relating to the existence or amount of any liability for Excise Tax. All expenses relating to any such proceeding or claim (including attorneys’ fees and other expenses incurred by the Executive in connection therewith) shall be paid by the Company promptly upon demand by the Executive, and any such payment shall be subject to a Gross-Up ...

Section 280G Provisions. This Exhibit A sets forth the terms and provisions applicable to the Employee pursuant to the provisions of Section 7(e) of the Agreement. This Exhibit A shall be subject in all respects to the terms and conditions of the Agreement. Capitalized terms used without definition in this Exhibit A shall have the meanings set forth in the Agreement.

Section 280G Provisions. This Exhibit C sets forth the terms and provisions applicable to the Executive pursuant to the provisions of Section 8 of the Agreement. This Exhibit C shall be subject in all respects to the terms and conditions of the Agreement. Capitalized terms used without definition in this Exhibit C shall have the meanings set forth in the Agreement.

Section 280G Provisions. Notwithstanding anything contained in this Agreement to the contrary, to the extent that any payment, benefit or distribution of any type to or for Executive by the Company, or any subsidiary or affiliate of the Company, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or restricted stock granted prior to the Merger) as a result of the Merger (collectively, the "Total Payments") is or will be subject to the excise tax ("Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), (or any successor to such Section), the Company shall pay to Executive, at the time Executive pays any Excise Tax with respect to any of such Total Payments (which may be at the time the Company withholds Excise Tax from any payments or at the time he files his annual federal income tax return for a year in which Excise Tax is due or payable), an additional amount (a "Gross-Up Payment") which is, after the imposition of all income, employment, excise and other taxes, penalties and interest thereon, equal to the sum of (i) the Excise Tax on such Total Payments plus (ii) any penalty and interest assessments associated with such Excise Tax. The initial determination of whether any portion of the Total Payments is subject to an Excise Tax and, if so, the amount and time of the Gross-Up Payment pursuant to this Section 14 shall be made by the Company. For purposes of determining whether any payments, benefits or amounts will be subject to the Excise Tax and the amount of any such Excise Tax, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made. Furthermore, the computation of the Gross-Up Payment shall assume (and adjust for the fact) that (i) there is a loss of miscellaneous itemized deductions under Section 67 of the Code (or analogous federal or state provisions) on account of the Gross-Up Payment and (ii) a loss of itemized deductions under Section 68 of the Code (or analogous federal or state provisions) on account of the Gross-Up Payment. The computation of the Gross-Up Payment shall take into account any reduction in the Gross-Up Payment due to the Executive's share of the hospital insurance portion of FICA and any state withholding taxes (other than any state withholding tax for income ...

Section 280G Provisions. This Exhibit B sets forth the terms and provisions applicable to Executive pursuant to the provisions of Section 4(h) of the Agreement. This Exhibit B shall be subject in all respects to the terms and conditions of the Agreement. Capitalized terms used without definition in this Exhibit B shall have the meanings set forth in the Agreement.

Section 280G Provisions. Notwithstanding contained in this Agreement to the contrary, to the extent that any payment or distribution of any type to or for the Employee by the Company or any of its affiliates, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or restricted stock granted by the Company pursuant to this Agreement or otherwise) (collectively, the "Total Payments") is or will be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), then the total Payments shall be reduced (but not below zero) (the "Reduction") so that the maximum amount of the Total Payments (after the Reduction) shall be one dollar($1.00) less than the amount which would cause the Total Payments to be subject to the excise tax imposed by Section 4999 of the Code, provided that the Total Payments shall only be reduced if the Reduction results in a greater net benefit (after giving effect to all income, employment, excise, and other taxes due) to the Employee than had the Reduction not been made. Unless the Employee shall have given prior written notice to the Company to effectuate a reduction in the Total Payments if such a reduction is required, the Company

Section 280G Provisions. Notwithstanding contained in this Agreement to the contrary, to the extent that any payment or distribution of any type to or for the Executive by the Company or any of its affiliates, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or restricted stock granted by the Company pursuant to this Agreement or otherwise) (collectively, the "TOTAL PAYMENTS") is or will be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "CODE"), then the Total Payments shall be reduced (but not below zero) so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to be subject to the excise tax imposed by Section 4999 of the Code. Unless the Executive shall have given prior written notice to the Company to effectuate a reduction in the Total Payments if such a reduction is required, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits, then by reducing or eliminating any accelerated vesting of stock options, then by reducing or eliminating any accelerated vesting of restricted stock, then by reducing or eliminating any other remaining Total Payments. The preceding provisions of this Section 9 shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation. Any determination that Total Payments to the Executive must be reduced or eliminated in accordance with the forgoing provisions of this Section 9 and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm or consulting firm with experience in such matters selected by the Company (the "ACCOUNTING FIRM"), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days after the date such calculation is requested by the Company or the Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company. If a reduction or elimination of Total Payments to the Executive in accordance with the foregoing is necessary based on the Accounting Firm's determination, the Accounting Firm shall furnish the Executive with a written opinion that f...

Section 280G Provisions. Notwithstanding contained in this Agreement to the contrary, to the extent that any payment or distribution of any type to or for the Employee by the Company or any of its affiliates, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or restricted stock granted by the Company pursuant to this Agreement or otherwise) (collectively, the "Total Payments") is or will be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), then the total Payments shall be reduced (but not below zero) (the "Reduction") so that the maximum amount of the Total Payments (after the Reduction) shall be one dollar($1.00) less than the amount which would cause the Total Payments to be subject to the excise tax imposed by Section 4999 of the Code, provided that the Total Payments shall only be reduced if the Reduction results in a greater net benefit (after giving effect to all income, employment, excise, and other taxes due) to the Employee than had the Reduction not been made. Unless the Employee shall have given prior written notice to the Company to effectuate a reduction in the Total Payments if such a reduction is required, the Company