Section 280G. In the event that any payments, distributions, benefits or entitlements of any type payable to Employee (“CIC Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).
Appears in 10 contracts
Samples: Employment Agreement (XPO Logistics, Inc.), Employment Agreement (XPO Logistics, Inc.), Employment Agreement (XPO Logistics, Inc.)
Section 280G. In the event that any payments, distributions, payments or benefits or entitlements of any type otherwise payable to Employee Executive, whether or not pursuant to this Agreement, (“CIC Benefits”) (i1) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii2) but for this paragraph Section 10, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits shall such payments and benefits will be reduced either (x) delivered in full, or (y) delivered as to such lesser amount (the “Reduced Amount”) extent that would result in no portion of such payments and benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the excise tax imposed by Section 4999 of the Code (and any equivalent state or local excise taxes), results in the receipt by Executive on an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of benefits, notwithstanding that all or some portion of such payments and benefits may be taxable under Section 4999 of the Code. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 6(g) shall 10 will be made in writing in good faith by a nationally-recognized accounting or consulting firm selected by the Company in its discretion (the “Accountants. In ”), whose determination will be conclusive and binding upon Executive and the Company for all purposes, other than in the event of a reduction manifest error. The Company shall request the Accountants to perform all necessary calculations promptly in connection with the applicable Change in Control or termination of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)employment. For purposes of making the calculations required by this Section 6(g)10, the 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, and other applicable legal authority. The Company and Employee shall Executive agree to furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the provision. The Company shall will bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 6(g).provision. Any reduction in payments and/or benefits required by this provision will 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 will be cancelled in the reverse order of the date of grant for equity
Appears in 10 contracts
Samples: Employment Agreement (JBG SMITH Properties), Employment Agreement (JBG SMITH Properties), Employment Agreement (JBG SMITH Properties)
Section 280G. In the event that any payments, distributions, the severance and other benefits provided for in this Agreement or entitlements of any type otherwise payable to Employee (“CIC Benefits”) the Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph Section 11, would be subject to the excise tax imposed by Section 4999 of the Code (Code, then, the “Excise Tax”), then EmployeeExecutive’s CIC Benefits severance and other benefits under this Agreement shall be reduced payable either (i) in full, or (ii) as to such lesser amount (the “Reduced Amount”) that which would result in no portion of such severance and other benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt whichever of the Reduced Amountforegoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Executive on an after-tax basis of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following order: (i) reduction of cash payments, (ii) cancellation of accelerated vesting of equity awards, and (iii) reduction of other benefits payable to the Executive. Unless the Company Corporation and Employee the Executive otherwise agree in writing, any determination required under this Section 6(g) 11 shall be made in writing in good faith by the Corporation’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding upon the portion of Executive and the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Corporation for all purposes. For purposes of making the calculations required by this Section 6(g)11, the 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, and other applicable legal authority. The Company Corporation and Employee the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the Company 11. The Corporation shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 6(g)11.
Appears in 9 contracts
Samples: Employment Agreement (GeneDx Holdings Corp.), Employment Agreement (Sema4 Holdings Corp.), Executive Chairman Agreement (Sema4 Holdings Corp.)
Section 280G. In the event that any payments, distributions, the severance and other benefits provided for in this Agreement or entitlements of any type otherwise payable to Employee (“CIC Benefits”) Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph Section 8, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employeethen, Executive’s CIC Benefits severance and other benefits under this Agreement shall be reduced payable either (i) in full, or (ii) as to such lesser amount (the “Reduced Amount”) that which would result in no portion of such severance and other benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt whichever of the Reduced Amountforegoing amounts, taking into account the applicable federal, state and local 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 severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following order: (i) reduction of cash payments, (ii) cancellation of accelerated vesting of equity awards, and (iii) reduction of other benefits payable to Executive. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 6(g) 8 shall be made in writing in good faith by the Company’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g)8, the 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, and other applicable legal authority. The Company and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the 8. The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 6(g)8.
Appears in 8 contracts
Samples: Executive Employment Agreement (Prelude Therapeutics Inc), Executive Employment Agreement (Prelude Therapeutics Inc), Executive Employment Agreement (Prelude Therapeutics Inc)
Section 280G. In (a) Notwithstanding anything in this Agreement to the contrary, in the event that any payments, distributions, benefits payment or entitlements of any type payable benefit received or to be received by Employee (including any payment or benefit received in connection with a Change of Control or the termination of Employee’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “CIC BenefitsTotal Payments”) would not be deductible (iin whole or part) constitute “parachute payments” within the meaning by Employer or any of its Affiliates making such payment or providing such benefit as a result of Section 280G of the CodeCode (“Section 280G”), then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G in such other plan, arrangement or agreement), the Total Payments shall be reduced (if necessary, to zero) in the manner specified in Section 9(b) hereof; provided, however, that such reduction shall only be made if (i) the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (ii) the amount of such Total Payments without such reduction (but for this paragraph would be subject to after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”) on such unreduced Total Payments).
(b) If it is determined that the Total Payments should be reduced in accordance with the Section 9(a) hereof, then such reduction shall be applied in the following order: (i) payments that are payable in cash that are valued at full value under Treasury Regulation Section 1.280G-1, Q&A 24(a) will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments due in respect of any equity valued at full value under Treasury Regulation Section 1.280G-1, Q&A 24(a) will be reduced next (if necessary, to zero), with amounts that are payable or deliverable last reduced first; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24 will be reduced next (if necessary, to zero), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); (iv) payments due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24 will be reduced next (if necessary, to zero), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) of this Section 9(b) will be next reduced pro-rata.
(c) It is possible that, after the determinations and selections made pursuant to Section 9(a) hereof, Employee will receive Total Payments that are, in the aggregate, either more or less than the amount determined under Section 9(a) hereof (hereafter referred to as an “Excess Payment” or “Underpayment”, as applicable). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then Employee shall, except to the extent that it would cause a violation of the Xxxxxxxx-Xxxxx Act of 2002, promptly repay the Excess Payment to Employer, together with interest on the Excess Payment at the applicable federal rate (as defined in Section 1274(d) of the Code) from the date of Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion receipt of such benefits being subject Excess Payment until the date of such repayment. In the event that it is determined (i) by arbitration pursuant to Section 10 hereof, (ii) by a court or (iii) by the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company which was, immediately prior to a Change of Control Control, Employer’s independent auditor, upon request of either party, that an Underpayment has occurred, Employer shall promptly pay an amount equal to the Underpayment to Employee (the “Accountants”but in any event within ten (10) days of such determination), that without together with interest on such reduction amount at the applicable federal rate from the date such amount would have been paid to Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under had the provisions of Section 4999 9(a) hereof not been applied until the date of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)payment.
Appears in 8 contracts
Samples: Employment Agreement (OPENLANE, Inc.), Employment Agreement (KAR Auction Services, Inc.), Employment Agreement (KAR Auction Services, Inc.)
Section 280G. In Notwithstanding any other provision of this Agreement to the contrary, in the event that the amount of severance and other benefits payable to Executive under this Agreement (including, without limitation, the acceleration of any payment or the accelerated vesting of any payment or other benefit), together with any payments, distributionsawards or benefits payable under any other plan, benefits program, arrangement or entitlements agreement maintained by the Company or one of any type payable to Employee its affiliates, would constitute an “excess parachute payment” (“CIC Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits the payments under this Agreement shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior minimum possible amount) until no amount payable to a Change Executive under this Agreement constitutes an “excess parachute payment” (within the meaning of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 280G of the Code); provided, an amount however, that is no such reduction shall be made if the net after-tax payment (after taking into account federal, state, local or other income, employment and excise taxes) to which Executive would otherwise be entitled without such reduction would be greater than the amountnet after-tax payment (after taking into account federal, on a net after tax basisstate, that Employee would be entitled local or other income and employment taxes) to retain upon Executive resulting from the receipt of the Reduced Amountsuch payments with such reduction. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith writing, by the Company’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g)Section, the 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, and other applicable legal authority. The Company and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the Section. The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 6(g)Section.
Appears in 7 contracts
Samples: Management Retention Agreement (Pc Tel Inc), Management Retention Agreement (Pc Tel Inc), Management Retention Agreement (Pc Tel Inc)
Section 280G. In 14.1 The Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment received under the event Agreement, including, without limitation, any excise tax imposed by Section 4999 of the Code (the “Excise Tax”); provided, however, that any paymentspayment or benefit received or to be received by the Employee in connection with a Change in Control or the termination of employment (whether payable under the terms of the Agreement or any other plan, distributionsarrangement or agreement with the Company or an Affiliate (collectively, benefits or entitlements of any type payable to Employee (the “CIC BenefitsPayments”) that would constitute a “parachute payment” within the meaning of Section 280G of the Code, shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax but only if, by reason of such reduction, the net after-tax benefit received by the Employee shall exceed the net after-tax benefit that would be received by the Employee if no such reduction was made. For purposes of this Section 14:
(a) The “net after-tax benefit” shall mean (i) the Payments which the Employee receives or is then entitled to receive from the Company or its Affiliates that would constitute “parachute payments” within the meaning of Section 280G of the Code, and less (ii) but the amount of all federal, state and local income and employment taxes payable by the Employee with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to the Employee (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Tax imposed with respect to the payments and benefits described in (i) above.
(b) All determinations under this Section 14 will be made by an accounting firm or law firm that is selected for this paragraph would purpose by the Company prior to the Change in Control (the “280G Firm”). All fees and expenses of the 280G Firm shall be borne by the Company. The Company will direct the 280G Firm to submit any determination it makes under this Section 14 and detailed supporting calculations to both the Employee and the Company as soon as reasonably practicable.
(c) If the 280G Firm determines that one or more reductions are required under Section 14, the 280G Firm shall also determine which Payments shall be reduced (first from cash payments and then from non-cash benefits) to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code Code, and the Company shall pay such reduced amount to the Employee. The 280G Firm shall make reductions required under this Section 14 in a manner that maximizes the net after-tax amount payable to the Employee.
(d) As a result of the uncertainty in the application of Section 280G at the time that the 280G Firm makes its determinations under this Section 14, it is possible that amounts will have been paid or distributed to the Employee that should not have been paid or distributed (collectively, the “Excise TaxOverpayments”), then Employee’s CIC Benefits shall or that additional amounts should be reduced paid or distributed to such lesser amount the Employee (collectively, the “Reduced AmountUnderpayments”) that would result in no portion of such benefits being subject to ). If the Excise Tax; provided that such amounts shall not be so reduced if the Company 280G Firm determines, based on either the advice assertion of a nationally recognized accounting firm selected deficiency by the Internal Revenue Service against the Company prior to or the Employee, which assertion the 280G Firm believes has a Change high probability of Control (the “Accountants”)success or controlling precedent or substantial authority, that without such reduction an Overpayment has been made, the Employee would be entitled must repay to receive and retain, on a net after tax basis (includingthe Company, without limitationinterest; provided, any excise taxes however, that no loan will be deemed to have been made and no amount will be payable by the Employee to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Employee is subject to tax under Section 4999 of the Code or generate a refund of tax imposed under Section 4999 of the Code). If the 280G determines, an amount that is greater than the amount, on a net after tax basisbased upon controlling precedent or substantial authority, that an Underpayment has occurred, the 280G Firm will notify the Employee would be entitled to retain upon receipt of the Reduced Amount. Unless and the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g)determination, and the Company shall bear will promptly pay the cost amount of all fees that Underpayment to the Accountants charge Employee.
(e) The parties will provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with any the preparation and issuance of the determinations and calculations contemplated by this Section 6(g)14.
Appears in 6 contracts
Samples: Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Section 280G. In 6.1 If any payment or benefit (including payments and benefits pursuant to this Agreement) that Executive would receive in connection with a Change in Control from the event that any payments, distributions, benefits Company or entitlements of any type payable to Employee otherwise (“CIC BenefitsTransaction Payment”) would (ia) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would be subject to the excise tax imposed by Section 4999 Internal Revenue Code of the Code 1986 (the “Excise TaxCode”); and (b) the net after-tax benefit that Executive would receive by reducing the Transaction Payments to three times the “base amount,” as defined in Section 280G(b)(3) of the Code, then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced AmountParachute Threshold”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after after-tax basis, that Employee benefit Executive would be entitled to retain upon receipt receive if the full amount of the Reduced Amount. Transaction Payments were paid to Executive, then the Transaction Payments payable to Executive shall be reduced (but not below zero) so that the Transaction Payments due to Executive do not exceed the amount of the Parachute Threshold, reducing first any Transaction Payments under Sections 5.5(a) and (b) hereof.
6.2 Unless Executive and the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) section shall be made in writing in good faith by the Company’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion of the CIC Benefits that are payable in cash under Company for all purposes. Subject to Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For 8.4, for purposes of making the calculations required by this Section 6(g)section, the 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, and other applicable legal authority. The Accountants shall provide detailed supporting calculations to the Company and Employee Executive as requested by the Company or Executive at least thirty (30) days prior to the date the excise tax imposed by Section 4999 of the Code (including any interest, penalties or additions to tax relating thereto) is required to be paid by Executive or withheld by the Company. Executive and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the section. The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 6(g)section as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code.
Appears in 6 contracts
Samples: Executive Employment Agreement (Aralez Pharmaceuticals Inc.), Executive Employment Agreement (Pozen Inc /Nc), Executive Employment Agreement (Pozen Inc /Nc)
Section 280G. In If any payment or benefit that the event that any paymentsExecutive may receive, distributions, benefits whether or entitlements of any type not payable to Employee or provided under this Agreement (“CIC BenefitsPayment”) ), 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 paragraph would sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits such Payment shall be reduced to such lesser amount (the Reduced Amount. The “Reduced Amount”” shall be either (A) the largest portion of the Payment that would result in no portion of such benefits the Payment being subject to the Excise Tax; provided that such Tax or (B) the largest portion, up to and including the total amount, of the Payment, whichever of the amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control determined under (the “Accountants”A) and (B), that without such reduction Employee would be entitled to receive after taking into account all applicable federal, state and retainlocal employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after after-tax basis, of the greater amount of the Payment notwithstanding that Employee would all or some portion of the Payment may be entitled subject to retain upon receipt of the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount. Unless , reduction shall occur in the Company following order: reduction of cash payments; reduction of employee benefits; and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountantscancellation of accelerated vesting of outstanding equity awards. In the event that acceleration of a reduction vesting of benefits hereunderoutstanding equity awards is to be reduced, benefits such acceleration of vesting shall be reduced by first reducing or eliminating undertaken in the portion reverse order of the CIC Benefits that are payable in cash under date of grant of the Executive’s outstanding equity awards. All calculations and determinations made pursuant this Section 6(d)(ii5(e) will be made by an independent accounting or consulting firm or independent tax counsel appointed by the Company (the “Tax Counsel”) whose determinations shall be conclusive and 6(d)(iii) binding on the Company and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)the Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g5(e), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G of the Code and Section 4999 of the Code, and other applicable legal authority. The Company and Employee shall furnish to bear all costs the Accountants such information and documents as the Accountants Tax Counsel may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge incur in connection with any calculations contemplated by this Section 6(g)its services.
Appears in 5 contracts
Samples: Employment Agreement (Cyteir Therapeutics, Inc.), Employment Agreement (Cyteir Therapeutics, Inc.), Employment Agreement (Cyteir Therapeutics, Inc.)
Section 280G. In the event of a change in ownership or control under section 280G of the Code, if it shall be determined that any paymentspayment or distribution in the nature of compensation (within the meaning of section 280G(b)(2) of the Code) to or for the benefit of the Executive, distributionswhether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), benefits or entitlements of any type payable to Employee (would constitute an “CIC Benefits”) (i) constitute “excess parachute paymentspayment” within the meaning of section 280G of the Code, the aggregate present value of the Payments under the Agreement shall be reduced (but not below zero) to the Reduced Amount (defined below) if and only if the Accounting Firm (described below) determines that the reduction will provide the Executive with a greater net after-tax benefit than would no reduction. No reduction shall be made unless the reduction would provide Executive with a greater net after-tax benefit. The parties agree that, in the event it appears that any Payment may constitute an “excess parachute payment”, they will reasonably cooperate with each other to attempt to mitigate the impact of Section 280G of the Code, and including, if appropriate, using commercially reasonable efforts to seek stockholder approval of such Payments for purposes of Section 280G(b)(5) of the Code. The determinations under this Section shall be made as follows:
(iia) but for The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Payments under this paragraph would Agreement without causing any Payment under this Agreement to be subject to the Excise Tax (defined below), determined in accordance with section 280G(d)(4) of the Code. The term “Excise Tax” means the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, together with any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing interest or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable penalties imposed with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)excise tax.
Appears in 5 contracts
Samples: Employment Agreement (NewLake Capital Partners, Inc.), Employment Agreement (NewLake Capital Partners, Inc.), Employment Agreement (NewLake Capital Partners, Inc.)
Section 280G. In a. Executive shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the event Code (such excise tax being the “Excise Tax”); provided, however, that any paymentspayment or benefit received or to be received by Executive, distributionswhether payable under the terms of this Agreement or any other plan, benefits arrangement or entitlements agreement with Company or an affiliate of any type payable to Employee Company (collectively, the “CIC BenefitsPayments”) that would constitute a “parachute payment” within the meaning of Section 280G of the Code, shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit Executive receives shall exceed the net after-tax benefit that Executive would receive if no such reduction was made.
b. The “net after-tax benefit” shall mean (i) the Payments which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, and less (ii) but the amount of all federal, state and local income and employment taxes payable by Executive with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Tax imposed with respect to the payments and benefits described in (b)(i) above.
c. All determinations under this paragraph Section 7 will be made by an accounting firm or law firm (the “280G Firm”) that is mutually agreed to by Executive and the Company prior to a change in ownership or control of a corporation (within the meaning of Treasury regulations under Section 280G of the Code). The 280G Firm shall be required to evaluate the extent to which payments are exempt from Section 280G of the Code as reasonable compensation for services rendered before or after the Change of Control. All fees and expenses of the 280G Firm shall be paid solely by the Company. The Company will direct the 280G Firm to submit any determination it makes under this Section 7 and detailed supporting calculations to both Executive and the Company as soon as reasonably practicable.
d. If the 280G Firm determines that one or more reductions are required under this Section 7, such Payments shall be reduced in the order that would provide Executive with the largest amount of after-tax proceeds (with such order, to the extent permitted by Sections 280G and 409A of the Code, designated by Executive, or otherwise determined by the 280G Firm) to the extent necessary so that no portion thereof shall be subject to the excise Excise Tax, and the Company shall pay such reduced amount to Executive. Executive shall at any time have the unilateral right to forfeit any equity award in whole or in part.
e. As a result of the uncertainty in the application of Section 280G of the Code at the time that the 280G Firm makes its determinations under this Section 7, it is possible that amounts will have been paid or distributed to Executive that should not have been paid or distributed (collectively, the “Overpayments”), or that additional amounts should be paid or distributed to Executive (collectively, the “Underpayments”). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against Executive or the Company, which assertion the 280G Firm believes has a high probability of success or is otherwise based on controlling precedent or substantial authority, that an Overpayment has been made, Executive must repay the Overpayment to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which Executive is subject to tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion or generate a refund of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable imposed under Section 4999 of the Code). If the 280G Firm determines, an amount that is greater than the amount, on a net after tax basisbased upon controlling precedent or substantial authority, that Employee would be entitled an Underpayment has occurred, the 280G Firm will notify Executive and the Company of that determination, and the Company will promptly pay the amount of that Underpayment to retain upon receipt Executive without interest.
f. Executive and the Company will provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the Reduced Amount. Unless the Company determinations and Employee otherwise agree in writing, any determination required under calculations contemplated by this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)7. For purposes of making the calculations required by this Section 6(g)7, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and 280G Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).
Appears in 5 contracts
Samples: Employment Agreement (OptiNose, Inc.), Employment Agreement (OptiNose, Inc.), Employment Agreement (OptiNose, Inc.)
Section 280G. (a) In the event that any payments, distributions, benefits the Company undergoes a “change in ownership or entitlements of any type payable to Employee control” (“CIC Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the CodeCode and the regulations and guidance promulgated thereunder (“Section 280G”)) and all, and or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the “Total Payments”), could constitute an “excess parachute payment” within the meaning of Section 280G, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G (the “Limited Amount”), or (ii) but for this paragraph would be subject if the amount of the Total Payments (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the “Excise Tax”) and the amount of all other applicable federal, state and local taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), then the amount of the Total Payments otherwise payable without regard to clause (i). If it is determined that the Limited Amount will maximize the Employee’s CIC Benefits after-tax proceeds, the Total Payments shall be reduced to such lesser amount equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the “Reduced Amount”Treasury Regulations does not apply, (iii) third, by reducing all remaining payments and benefits that would result in no portion of such are exempt from Section 409A and (iv) finally, by reducing payments and benefits being that are subject to Section 409A, in each case, with all such reductions done on a pro rata basis.
(b) All determinations made pursuant this Section 14 will be made at the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized Company’s or its Affiliates’ expense by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by the Company prior to a Change of Control for such purpose (the “AccountantsIndependent Advisors”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making such determinations, no portion of the calculations required Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by this reason of Section 6(g)280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and other applicable legal authority. The Company and Employee intent of this Section 14, the excess amount shall furnish be returned immediately by the Executive to the Accountants such information Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and documents as the Accountants may reasonably require in order to make a determination under intent of this Section 6(g)14, and the Company additional amount shall bear be paid immediately by the cost Company, or any Affiliate of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company, as applicable, to the Executive.
Appears in 5 contracts
Samples: Employment Agreement (Albireo Pharma, Inc.), Employment Agreement (Albireo Pharma, Inc.), Employment Agreement (Albireo Pharma, Inc.)
Section 280G. In (a) Except as otherwise provided in subsection (b) below, in the event that it shall be determined that any paymentsright to receive any payment or other benefit under this Letter or under any other agreements, distributionsarrangements or benefit plans of the Company or any of its subsidiaries or Affiliates to or for your benefit (the “Payments”), benefits would not be deductible by the Company or entitlements any of its subsidiaries or Affiliates or the person making such payment or distribution or providing such right or benefit as a result of Section 280G of the Code, then, to the extent necessary to make the Payments deductible to the maximum extent possible (but, except as otherwise provided herein, only to such extent and after taking into account any type payable reduction in the Payments relating to Employee (“CIC Benefits”) (i) constitute Section 280G of the Code under any other plan, arrangement or agreement), such right, payment or benefit shall not become vested or paid. For purposes of determining whether any of the Payments would not be deductible as a result of Section 280G of the Code and the amount of such disallowed deduction, all Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (iias defined under Section 280G(b)(3) but for this paragraph of the Code) shall be treated as nondeductible, assuming that no portion of any payment to be received by you in connection with the Merger would be subject to viewed as “reasonable compensation for personal services” within the excise tax imposed by meaning of Section 4999 280G of the Code and the regulations thereunder. All determinations required to be made under this subsection (the “Excise Tax”a), then Employee’s CIC Benefits including whether and which of the Payments are required to be reduced, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of made by a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), provided that without such reduction Employee would determinations shall be entitled to receive based upon a “more likely than not” standard, and retainprovided further that, on a net after tax basis (includingfor further certainty, without limitationthe amount by which the Payments shall be reduced, if at all, shall be $1,000 more than the amount determined by the Accountants. Notwithstanding anything in the foregoing and notwithstanding any other provision of any other agreement or arrangement between you and the Company or any of its subsidiaries or Affiliates, any excise taxes payable under reductions made pursuant to this Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled 12(a) or pursuant to retain upon receipt of the Reduced Amount. Unless any similar provision in any other agreement between you and the Company and Employee otherwise agree in writing, or any determination required under this Section 6(g) of its subsidiaries or Affiliates shall be made in writing the following order: (i) first, all rights to continued benefits or payments in good faith by respect of premium costs under the Accountants. In the event of a reduction of benefits hereunder, Company’s group health and welfare plans and all other similar rights to reimbursements or in-kind benefits shall be reduced by first reducing reduced, beginning with benefits that would be received or eliminating the portion of the CIC Benefits that are payable paid last in time; (ii) second, all rights to cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, severance payments and other applicable legal authority. The Company and Employee similar payments that would be made upon a termination of your employment shall furnish be reduced, beginning with payments that would be made last in time; (iii) third, all rights to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g)payments, and the Company shall bear the cost of all fees the Accountants charge vesting or benefits in connection with any calculations contemplated restricted stock units with respect to the common stock of the Company held by you shall be reduced; (iv) fourth, all rights to payments, vesting or benefits in connection with any options to purchase common stock of the Company shall be reduced; (v) fifth, all rights to payments, vesting or benefits in connection with any stock appreciation rights with respect to the common stock of the Company held by you shall be reduced; and (vi) sixth, all rights to any other payments or benefits shall be reduced, beginning with payments or benefits that would be received last in time.
(b) Notwithstanding any other provision of this Letter, the provisions of subsection (a) above shall not apply to reduce the Payments if the Payments that would otherwise be nondeductible under Section 6(g)280G of the Code are disclosed to and approved by the Company’s stockholders in accordance with Section 280G(b)(5)(B) of the Code and applicable treasury regulations.
Appears in 5 contracts
Samples: Transaction Bonus Agreement (Vought Aircraft Industries Inc), Transaction Bonus Agreement (Vought Aircraft Industries Inc), Transaction Bonus Agreement (Vought Aircraft Industries Inc)
Section 280G. In (a) Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the event that contrary, if any paymentsof the payments or benefits received or to be received by Executive (including, distributionswithout limitation, any payment or benefits received in connection with a Change in Control or entitlements Executive’s termination of employment, whether pursuant to the terms of this Agreement or any type payable to Employee (“CIC Benefits”) (iother plan, arrangement, or agreement, or otherwise) 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 paragraph would will be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits the Company shall either (i) reduce (but not below zero) such payments or benefits received or to be received by Executive so that the aggregate present value of the payments and benefits received by Executive is $1.00 less than the amount which would otherwise cause Executive to incur an Excise Tax, or (ii) be paid in full, whichever results in the greatest net after-tax payment to Executive.
(b) All calculations and determinations under this Section 5.6 shall be reduced to such lesser amount made by an independent accounting firm or independent tax counsel appointed by the Company (the “Reduced AmountTax Counsel”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts whose determinations shall not be so reduced if the Company determines, based conclusive and binding on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g)5.6, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(g), and the 5.6. The Company shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 6(g)its services.
Appears in 5 contracts
Samples: Executive Employment Agreement (Waitr Holdings Inc.), Executive Employment Agreement (Waitr Holdings Inc.), Executive Employment Agreement (Waitr Holdings Inc.)
Section 280G. In Notwithstanding any other provision of this Agreement, in the event that any paymentsit shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Employee, distributionswhether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Payments”), benefits or entitlements of any type payable to Employee (“CIC Benefits”) (i) constitute “excess parachute payments” within the meaning of (as such term is defined under Section 280G of the CodeCode or any successor provision, and the regulations promulgated thereunder (iicollectively, “Section 280G”)) but for this paragraph that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then Employee’s CIC Benefits the Payments shall be reduced either (a) delivered in full, or (b) delivered to such lesser amount (the “Reduced Amount”) extent that would result in no portion of such benefits the Payments being subject to the Excise Tax; provided that such amounts shall not be so reduced if , whichever of the Company determinesforegoing amounts, based on taking into account the advice of a nationally recognized accounting firm selected applicable federal, state or local income and employment taxes and the Excise Tax, results in the receipt by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retainEmployee, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of benefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. Unless In the Company and Employee otherwise agree in writing, any determination required under event that the Payments are to be reduced pursuant to this Section 6(g) 5, such Payments shall be reduced such that the reduction of compensation to be provided to Employee as a result of this Section 5 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 13 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company.
Appears in 5 contracts
Samples: Severance Compensation Agreement (Pershing Gold Corp.), Severance Compensation Agreement (Pershing Gold Corp.), Severance Compensation Agreement (Pershing Gold Corp.)
Section 280G. In Notwithstanding anything to the event that any paymentscontrary in this Agreement, distributions, benefits or entitlements of any type payable to Employee if the Executive is a “disqualified individual” (“CIC Benefits”as defined in Section 280G(c) (i) constitute “parachute payments” within the meaning of Section 280G of the Code), and the payments and benefits provided for under this Agreement, together with any other payments and benefits which the Executive has the right to receive from the Company Group, would constitute a “parachute payment” (iias defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for under this Agreement shall be either (a) reduced (but for this paragraph would not below zero) so that the present value of such total amounts and benefits received by the Executive from the Company Group will be one dollar ($1.00) less than three times the Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by the Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the “Excise Tax”better net after-tax position to the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, then Employee’s CIC Benefits if applicable, shall be reduced made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such lesser amount (the “Reduced Amount”) payment or benefit that would result be made first in no portion time) and, then, reducing any benefit to be provided in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of such the payments and benefits being subject to the Excise Tax; provided that such amounts hereunder is necessary shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected made by the Company prior in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a parachute payment exists, exceeds one dollar ($1.00) less than three times the Executive’s base amount, then the Executive shall immediately repay such excess to a Change of Control (the “Accountants”)Company upon notification that an overpayment has been made. Nothing in this Section 12 shall require the Company Group to be responsible for, that without such reduction Employee would be entitled to receive and retainor have any liability or obligation with respect to, on a net after the Executive’s excise tax basis (including, without limitation, any excise taxes payable liabilities under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).
Appears in 5 contracts
Samples: Employment Agreement (Academy Sports & Outdoors, Inc.), Employment Agreement (Academy Sports & Outdoors, Inc.), Employment Agreement (Academy Sports & Outdoors, Inc.)
Section 280G. In Notwithstanding anything to the event that any paymentscontrary in this Agreement, distributions, benefits or entitlements of any type payable to Employee if Executive is a “disqualified individual” (“CIC Benefits”as defined in Section 280G(c) (i) constitute “parachute payments” within the meaning of Section 280G of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (iias defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but for this paragraph would not below zero) so that the present value of such total amounts and benefits received by Executive from the Company or any of its Affiliates shall be one dollar ($1.00) less than three times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the “Excise Tax”better net after-tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, then Employee’s CIC Benefits if applicable, shall be reduced made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such lesser amount (the “Reduced Amount”) payment or benefit that would result be made first in no portion time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of such the payments and benefits being provided hereunder is necessary (or whether Executive would be subject to such excise tax) shall be made at the Excise Tax; provided that such amounts shall not be so reduced if expense of the Company determinesby a firm of independent accountants, based on the advice of a nationally recognized accounting firm law firm, or other valuation specialist selected by the Company Board in good faith prior to the consummation of the applicable change in control transaction, and the applicable independent accountants, law firm, or other valuation specialist shall consider the value of Executive’s restrictive covenants (including the non-competition restrictions set forth herein) as part of its analysis. If a Change reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of Control its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Executive’s base amount, then Executive shall immediately repay such excess to the “Accountants”), Company upon notification that without such reduction Employee would be entitled an overpayment has been made. Nothing in this Section 28 shall require the Company to receive and retain, on provide a net after gross-up payment to Executive with respect to Executive’s excise tax basis (including, without limitation, any excise taxes payable liabilities under Section 4999 of the Code), an amount that is greater than . [The remainder of this page was left blank intentionally; the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)signature page follows.]
Appears in 5 contracts
Samples: Employment Agreement (Aviat Networks, Inc.), Employment Agreement (Aviat Networks, Inc.), Employment Agreement (Aviat Networks, Inc.)
Section 280G. In (i) Notwithstanding any other provisions of this Agreement, in the event that any paymentspayment or benefit by the Company or otherwise to or for the benefit of Employee, distributionswhether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and benefits, including the payments and benefits or entitlements under Section 4 of any type payable this Agreement, being hereinafter referred to Employee (as the “CIC BenefitsTotal Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code), and (ii) but for this paragraph would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Total Payments shall be to the minimum extent necessary to avoid the imposition of the Excise Tax on the Total Payments, but only if (A) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (B) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments and the amount of the Excise Tax to which Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments).
(ii) The payment reduction contemplated in this Section 8(d) shall be implemented by reducing the payments/benefits in the same order as they are received by Employee’s CIC Benefits . If several payments/benefits are received simultaneously and their collective amount exceeds the remaining amount of reduction hereunder, such payments shall be reduced ratably, proportional to such lesser amount their individual amount.
(iii) All determinations regarding the “Reduced Amount”application of this Section 8(d) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of made by a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “AccountantsAccounting Firm”), that without such reduction Employee would be entitled subject to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any final determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In Internal Revenue Service or the event court of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) competent jurisdiction if and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)when such final determination occurs. For purposes of making determinations, no portion of the calculations required Total Payments shall be taken into account which, in the opinion of the Accounting Firm (A) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by this reason of Section 6(g)280G(b)(4)(A) of the Code) or (B) constitutes reasonable compensation for services actually rendered, within the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application meaning of Section 280G(b)(4)(B) of the Code, and other applicable legal authorityin excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. The Company costs of obtaining such determination and Employee all related fees and expenses (including related fees and expenses incurred in any later audit) shall furnish to be borne by the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company.
Appears in 5 contracts
Samples: Change in Control and Severance Agreement (XPO, Inc.), Change in Control and Severance Agreement (XPO, Inc.), Change in Control and Severance Agreement (XPO, Inc.)
Section 280G. In Notwithstanding anything to the event contrary in this Agreement, You expressly agree that if the payments and benefits provided for in this Agreement or any paymentsother payments and benefits which You have the right to receive from the Company and its affiliates (collectively, distributionsthe “Payments”), benefits or entitlements would constitute a “parachute payment” (as defined in Section 280G(b)(2) of any type payable to Employee (“CIC Benefits”) the Code), then the Payments shall be either (i) constitute reduced (but not below zero) so that the present value of the Payments will be one dollar ($1.00) less than three times Your “parachute paymentsbase amount” within the meaning of (as defined in Section 280G 280G(b)(3) of the Code, ) and (ii) but for this paragraph would so that no portion of the Payments received by You shall be subject to the excise tax imposed by Section 4999 of the Code or (ii) paid in full, whichever produces the “Excise Tax”)better net after-tax result to You. The reduction of Payments, then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determinesany, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made by reducing first any Payments that are exempt from Section 409A and then reducing any Payments subject to Section 409A in writing the reverse order in which such Payments would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time). The determination as to whether any such reduction in the Payments is necessary shall be made by the Compensation Committee or its designee in good faith by faith, which determination will be conclusive and binding upon You and the AccountantsCompany for all purposes. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g)such determination, the Accountants Compensation Committee or its designee may engage the services of accountants or other professional advisors, and may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the CodeCode (including but not limited to Sections 280G and 4999). If a reduced Payment is made or provided and, through error or otherwise, that Payment, when aggregated with other payments and other applicable legal authority. The benefits from Company and Employee (or its affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Your base amount, then You shall furnish immediately repay such excess to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company.
Appears in 5 contracts
Samples: Employment Agreement (nCino, Inc.), Employment Agreement (nCino, Inc.), Employment Agreement (Ncino, Inc.)
Section 280G. In Notwithstanding anything to the event contrary in this Agreement, Employee expressly agrees that if the payments and benefits provided for in this Agreement or any paymentsother payments and benefits that Employee has the right to receive from the Employers and their Affiliates (collectively, distributionsthe “Payments”), benefits or entitlements of any type payable to Employee (“CIC Benefits”) (i) would constitute a “parachute paymentspayment” within the meaning of (as defined in Section 280G 280G(b)(2) of the Code), then the Payments shall be either
(a) reduced (but not below zero) so that the present value of the Payments will be one dollar ($1.00) less than three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and (ii) but for this paragraph would so that no portion of the Payments received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the “Excise Tax”)better net after-tax position to Employee. The reduction of Payments, then Employee’s CIC Benefits if any, shall be reduced made by reducing first any Payments that are exempt from Section 409A of the Code and then reducing any Payments subject to Section 409A of the Code in the reverse order in which such Payments would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such lesser amount (the “Reduced Amount”) payment or benefit that would be made first in time). The professional firm engaged by the Company for general tax purposes as of the day prior to the date of the event that might reasonably be anticipated to result in no portion of such benefits being Payments that would otherwise be subject to the Excise Tax; provided that such amounts shall not be excise tax will perform the foregoing calculations. If the tax firm so reduced if engaged by the Company determinesis serving as accountant or auditor for the acquiring company, based on the advice of Company will appoint a nationally recognized accounting tax firm selected by to make the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations determinations required by this Section 6(g6(k), . The Company will bear all expenses with respect to the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authoritydeterminations by such firm required to be made by this Section 6(k). The Company and Employee shall furnish to the Accountants such tax firm such information and documents as the Accountants tax firm may reasonably require request in order to make a determination under this Section 6(g)its required determination. The tax firm will provide its calculations, and together with detailed supporting documentation, to the Company and Employee as soon as practicable following its engagement. If a reduced Payment is made or provided and, through error or otherwise, that Payment, when aggregated with other payments and benefits from Employers (or their Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Employee’s base amount, then Employee shall bear immediately repay such excess to the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company.
Appears in 4 contracts
Samples: Employment Agreement (Oasis Petroleum Inc.), Employment Agreement (Oasis Petroleum Inc.), Employment Agreement (Oasis Petroleum Inc.)
Section 280G. In (A) Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the event that contrary, if (i) any payments, distributions, of the payments or benefits provided or entitlements to be provided by ChannelAdvisor to You or for Your benefit pursuant to the terms of any type payable to Employee this Agreement or otherwise (“CIC BenefitsCovered Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would be Code subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), and (ii) the aggregate present value of the parachute payments reduced by the Excise Tax would be less than three (3) times Your “base amount” as defined in Section 280G(b)(3) of the Code, then Employee’s CIC Benefits the Covered Payments shall be reduced (but not below zero) to such lesser amount (the “Reduced Amount”) minimum extent necessary to ensure that would result in no portion of such benefits being the Covered Payments is subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control .
(the “Accountants”), that without B) Any such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made by in writing in good faith by accordance with Section 409A of the Accountants. In Code and the event following:
(i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of a reduction of benefits hereunder, benefits the Code shall be reduced by first reducing or eliminating first;
(i) all other Covered Payments shall then be reduced as follows:
(A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date; and
(ii) in the portion event that accelerated vesting of Awards is to be reduced, such acceleration will be cancelled in the reverse order of the CIC Benefits that are payable in cash under Section 6(d)(iidates on which the Awards were granted.
(C) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable You shall provide ChannelAdvisor with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants ChannelAdvisor may reasonably require request in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)4.
Appears in 4 contracts
Samples: Executive Severance and Change in Control Agreement (Channeladvisor Corp), Executive Severance and Change in Control Agreement (Channeladvisor Corp), Executive Severance and Change in Control Agreement (Channeladvisor Corp)
Section 280G. In Notwithstanding anything to the event contrary in this Agreement, You expressly agree that if the payments and benefits provided for in this Agreement or any paymentsother payments and benefits which You have the right to receive from the Company and its affiliates (collectively, distributionsthe "Payments"), benefits or entitlements would constitute a "parachute payment" (as defined in Section 280G(b)(2) of any type payable to Employee (“CIC Benefits”) the Code), then the Payments shall be either (i) constitute “parachute payments” within reduced (but not below zero) so that the meaning present value of the Payments will be one dollar ($1.00) less than three times Your "base amount" (as defined in Section 280G 280G(b)(3) of the Code, ) and (ii) but for this paragraph would so that no portion of the Payments received by You shall be subject to the excise tax imposed by Section 4999 of the Code or (ii) paid in full, whichever produces the “Excise Tax”)better net after-tax result to You. The reduction of Payments, then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determinesany, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made by reducing first any Payments that are exempt from Section 409A and then reducing any Payments subject to Section 409A in writing the reverse order in which such Payments would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time). The determination as to whether any such reduction in the Payments is necessary shall be made by the Compensation Committee or its designee in good faith by faith, which determination will be conclusive and binding upon You and the AccountantsCompany for all purposes. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g)such determination, the Accountants Compensation Committee or its designee may engage the services of accountants or other professional advisors, and may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the CodeCode (including but not limited to Sections 280G and 4999). If a reduced Payment is made or provided and, through error or otherwise, that Payment, when aggregated with other payments and other applicable legal authority. The benefits from Company and Employee (or its affiliates) used in determining if a "parachute payment" exists, exceeds one dollar ($1.00) less than three times Your base amount, then You shall furnish immediately repay such excess to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company.
Appears in 4 contracts
Samples: Employment Agreement (nCino, Inc.), Employment Agreement (nCino, Inc.), Employment Agreement (nCino, Inc.)
Section 280G. (a) In the event that any payments, distributions, payments or benefits provided or entitlements to be provided by EMPLOYER or any affiliate of any type payable EMPLOYER to Employee EXECUTIVE or for EXECUTIVE’s benefit pursuant to the terms of this Agreement or otherwise (“CIC BenefitsCovered Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the CodeInternal Revenue Code (or any successor provision thereto) (“280G”) and would, and (ii) but for this paragraph would Section 7, be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then Employee’s CIC Benefits prior to making the Covered Payments the parties will, to the extent practicable and reasonable, take such action and execute such documents as may be necessary to ensure that none of the Covered Payments will constitute “parachute payments” within the meaning of 280G, and in the event (but only in the event) it is not practicable and reasonable to take such action and execute such documents or it is not reasonably possible to ensure that none of the Covered Payments will constitute “parachute payments” within the meaning of 280G, then a calculation shall be made comparing (i) the Net Benefit (as defined below) to EXECUTIVE of the Covered Payments after payment of the Excise Tax to (ii) the Net Benefit to EXECUTIVE if the Covered Payments are reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits extent necessary to avoid being subject to the Excise Tax; provided that such amounts shall not be so reduced . Only if the Company determines, based on amount calculated under clause (i) above is less than the advice of a nationally recognized accounting firm selected by amount calculated under clause (ii) above will the Company prior Covered Payments be reduced to a Change of Control (the “Accountants”), minimum extent necessary to ensure that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 no portion of the Code), an amount that Covered Payments is greater than subject to the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt Excise Tax. The term “Net Benefit” shall mean the present value of the Reduced AmountCovered Payments net of all federal, state, local, foreign income, employment, and excise taxes. Unless the Company and Employee otherwise agree in writing, any determination required under Any reduction made pursuant to this Section 6(g) 7 shall be made in writing in good faith a manner determined by EMPLOYER that is consistent with the Accountants. In the event requirements of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).409A.
Appears in 4 contracts
Samples: Employment Agreement (Franklin Financial Network Inc.), Employment Agreement (Franklin Financial Network Inc.), Employment Agreement (Franklin Financial Network Inc.)
Section 280G. In 6.1 If any payment or benefit (including payments and benefits pursuant to this Agreement) that Executive would receive in connection with a Change in Control from the event that any payments, distributions, benefits Company or entitlements of any type payable to Employee otherwise (“CIC BenefitsTransaction Payment”) would (ia) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would be subject to the excise tax imposed by Section 4999 Internal Revenue Code of the Code 1986 (the “Excise TaxCode”); and (b) the net after-tax benefit that Executive would receive by reducing the Transaction Payments to three times the “base amount,” as defined in Section 280G(b)(3) of the Code, then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced AmountParachute Threshold”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after after-tax basis, that Employee benefit Executive would be entitled to retain upon receipt receive if the full amount of the Reduced Amount. Transaction Payments were paid to Executive, then the Transaction Payments payable to Executive shall be reduced (but not below zero) so that the Transaction Payments due to Executive do not exceed the amount of the Parachute Threshold, reducing first any Transaction Payments under Sections 5.5(a) and (b) hereof.
6.2 Unless Executive and the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) section shall be made in writing in good faith by the Company’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion Company for all purposes. Subject to Section 8.4 of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For this Agreement, for purposes of making the calculations required by this Section 6(g)section, the 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, and other applicable legal authority. The Accountants shall provide detailed supporting calculations to the Company and Employee Executive as requested by the Company or Executive at least thirty (30) days prior to the date the excise tax imposed by Section 4999 of the Code (including any interest, penalties or additions to tax relating thereto) is required to be paid by Executive or withheld by the Company. Executive and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the section. The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 6(g)section as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code.
Appears in 4 contracts
Samples: Executive Employment Agreement (Pozen Inc /Nc), Executive Employment Agreement (Pozen Inc /Nc), Executive Employment Agreement (Pozen Inc /Nc)
Section 280G. In (a) Notwithstanding anything in this Agreement or any other plan or agreement to the contrary, in the event that any payments, distributions, benefits payment or entitlements of any type payable benefit received or to be received by Employee (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, the “CIC BenefitsTotal Payments”) would not be deductible (iin whole or in part) constitute “parachute payments” within the meaning by Company or any affiliate thereof making such payment or providing such benefit as a result of Section 280G of the Code, then, to the extent necessary to make such portion of the Total Payments deductible, the portion of the Total Payments that do not constitute deferred compensation within the meaning of Section 409A shall first be reduced (if necessary, to zero), and all other Total Payments shall thereafter be reduced (if necessary, to zero) with cash payments being reduced before non-cash payments, and payments to be paid last being reduced first, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but for this paragraph would be subject to after subtracting the excise net amount of federal, state and local income taxes on such Total Payments and the amount of tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced and similar state and local laws) to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction which Employee would be entitled subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to receive and retain, on a net after tax basis such unreduced Total Payments).
(including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any b) Any determination required under this Section 6(g) 18 shall be made in writing in good faith by the an accounting firm selected by Company (“Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind”). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to provide the Accountants with such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), 18. For purposes of making the calculations and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated determinations required by this Section 6(g)18, the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Accountants’ determinations shall be final and binding on Company and Employee.
Appears in 4 contracts
Samples: Employment Agreement (Sable Offshore Corp.), Employment Agreement (Sable Offshore Corp.), Employment Agreement (Sable Offshore Corp.)
Section 280G. In (a) Notwithstanding anything contained in this Agreement to the event contrary, (i) to the extent that any payments, distributions, benefits payment or entitlements distribution of any type payable to Employee or for the Executive by the Company, any Affiliate of the Company, any Person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company’s assets (“CIC Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code) and all regulations, guidance, and other interpretative authority issued thereunder (collectively, “Section 280G”)and the regulations thereunder), or any Affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Payments”) constitute “parachute payments” (within the meaning of Section 280G), and if (ii) but for this paragraph would be subject to such aggregate would, if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), be less than the amount the Executive would receive, after all taxes, if the Executive received aggregate Payments equal (as valued under Section 280G) to only three times the Executive’s “base amount” (within the meaning of Section 280G), less $1.00, then Employee’s CIC Benefits (iii) such Payments shall be reduced (but not below zero) if and to such lesser amount (the “Reduced Amount”) extent necessary so that would result in no portion of such benefits being Payments to be made or benefit to be provided to the Executive shall be subject to the Excise Tax; provided that such amounts . All determinations required to be made under this Section 6.2 shall not be so reduced if the Company determines, based on the advice of made by a nationally recognized accounting firm that is (i) not serving as accountant or auditor for the individual, entity or group effecting the Change in Control and (ii) selected by the Company prior to a Change with the consent of Control the Executive which consent shall not be unreasonably withheld, conditioned or delayed (the “AccountantsAccounting Firm”), that without which shall provide detailed supporting calculations (which detailed supporting calculations shall include specific information about each Payment (including the amount of each Payment) and such reduction Employee would be entitled other information as the Executive shall reasonably request or need to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 make the determination required of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled Executive under this Section 6.2 both to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any the Executive within thirty (30) business days after the Termination Date (or such earlier time as is requested by the Company). Any such determination required under this Section 6(g) by the Accounting Firm shall be made in writing in good faith by binding upon the AccountantsCompany and the Executive. In If the event of a reduction of benefits hereunderPayments are so reduced, benefits the Company shall be reduced reduce or eliminate the Payments (A) by first reducing or eliminating the portion of the CIC Benefits that Payments which are not payable in cash under Section 6(d)(ii(other than that portion of the Payments subject to clause (C) and 6(d)(iiihereof), (B) and then by reducing or eliminating any amounts cash payments (other than that are payable with respect portion of the Payments subject to long-term incentives including any equity-based clause (C) hereof) and (C) then by reducing or equity-related awards eliminating the portion of the Payments (whether payable in cash or not payable in kind). For purposes of making cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require farthest in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)time.
Appears in 4 contracts
Samples: Employment Agreement (Media General Inc), Employment Agreement (Media General Inc), Employment Agreement (Media General Inc)
Section 280G. In (a) Notwithstanding anything to the event contrary herein, if it shall be determined that any payments, distributions, benefits payment or entitlements of benefit hereunder or under any type payable other plan or agreement or otherwise (collectively "Payments") would constitute an "excess parachute payment" to Employee (“CIC Benefits”) (i) constitute “parachute payments” the Executive within the meaning of Section 280G of the Code, and (ii) but for this paragraph thus would not be deductible under Section 280G of the Code and would be subject to the excise tax imposed by Section 4999 of the Code or any similar tax (the “Excise "280G Tax”"), then Employee’s CIC Benefits and if and only if the Executive would be in a better after-tax position by reducing the Payments, the amounts payable hereunder shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no extent necessary to eliminate any Payments or portion of such benefits the Payments from being non-deductible under Section 280G(b)(1) of the Code and thereby not subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected excise tax imposed by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code). In such case, an amount the Payments shall be reduced so that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt total aggregate value of the Reduced Amount. Unless Payments do not exceed 2.99 times the total value of the Executive's average annualized compensation for the preceding five years.
(b) The Company agrees that it will use commercially reasonable efforts to obtain the approval, in the manner and by such number of stockholders of the Company, as is required under the terms of Section 270G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G inapplicable to any and all benefits provided to the Executive pursuant to this Agreement as well as pursuant to any other compensation agreements between the Company and Employee otherwise agree in writing, any determination required the Executive.
(c) Any determinations to be made under this Section 6(g) Paragraph 6 shall be made in writing in good faith by the Accountants. In Company's independent public accountants (the event of a reduction of benefits hereunder"Accounting Firm"), benefits which firm shall provide its determinations and any supporting calculations both to the Company and to the Executive, and shall be reduced by first reducing or eliminating binding upon the portion Company and the Executive. All fees and expenses of the CIC Benefits that are payable Accounting Firm in cash under Section 6(d)(ii) and 6(d)(iii) and then performing the determinations referred to in this paragraph shall be borne solely by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company.
Appears in 4 contracts
Samples: Change in Control Agreement (Tranzyme Inc), Change in Control Agreement (Tranzyme Inc), Change in Control Agreement (Tranzyme Inc)
Section 280G. (a) Notwithstanding anything to the contrary herein, Section 10(b) shall apply in the event that the Company satisfies the requirement of Section 280G(b)(5)(A)(ii)(I) of the Code. In the event that the Company does not satisfy such requirement, Section 10(c), not Section 10(b), shall apply.
(b) Prior to any change described in Section 280G(b)(2)(A)(i) of the Code (a “Section 280G Transaction”) and in accordance with the requirements of Section 280G(b)(5)(B) of the Code, the Company shall seek, but shall not be required to obtain, approval by its shareholders of any payments, distributionsoptions, awards or benefits or entitlements (including, without limitation, the monetary value of any type payable to Employee non-cash benefits and the accelerated vesting of stock options) under this Agreement or under any other plan, agreement or arrangement with the Company, any person whose actions result in a Section 280G Transaction or any person affiliated with the Company or such person (collectively, the “CIC BenefitsPayments”) (i) ), that may separately or in the aggregate constitute “parachute payments” within the meaning of Section 280G (collectively, the “Potential Parachute Payments”). In the event that the shareholders of the Company do not approve the Employee’s Potential Parachute Payments in accordance with Section 280G(b)(5)(B) of the Code, the Employee will have no right or entitlement to receive or retain, as the case may be, that portion of his Potential Parachute Payments that would otherwise cause any portion of any of his Potential Parachute Payments to be treated as an “excess parachute payment” (within the meaning of Section 280G).
(c) In the event that the Employee becomes entitled to receive or receives any Payments and (ii) it is determined that, but for this paragraph would Section 10(c), any of the Payments will be subject to the any excise tax imposed by pursuant to Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then Employee’s CIC Benefits the Company shall be pay to the Employee either (i) the full amount of the Payments or (ii) an amount equal to the Payments, reduced by the minimum amount necessary to such lesser amount prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Section 280G) (the “Reduced AmountCapped Payments”) ), whichever of the foregoing amounts results in the receipt by the Employee, on an after-tax basis, of the greatest amount of Payments notwithstanding that would result in no all or some portion of such benefits being the Payments may be subject to the Excise Tax; provided . For purposes of determining whether an Employee would receive a greater after-tax benefit from the Capped Payments than from receipt of the full amount of the Payments, (i) there shall be taken into account any Excise Tax and all applicable federal, state and local taxes required to be paid by the Employee in respect of the receipt of such payments and (ii) such payments shall be deemed to be subject to federal income taxes at the highest rate of federal income taxation applicable to individuals that is in effect for the calendar year in which the benefits are to be paid, and state and local income taxes at the highest rate of taxation applicable to individuals in the state and locality of the Employee’s residence on the effective date of the Section 280G Transaction, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (as determined by assuming that such amounts deduction is subject to the maximum limitation applicable to itemized deductions under Section 68 of the Code and any other limitations applicable to the deduction of state and local income taxes under the Code).
(d) All calculations and determinations under this Section 10, including application and interpretation of the Code and related regulatory, administrative and judicial authorities, shall not be so reduced if the Company determines, based on the advice of a nationally recognized made by an independent accounting firm selected or independent tax counsel appointed by the Company prior to a Change of Control (the “AccountantsTax Advisor”), that without such reduction Employee would . All determinations made by the Tax Advisor under this Section 10 shall be entitled to receive conclusive and retain, binding on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless both the Company and Employee otherwise agree in writingthe Employee, and the Company shall cause the Tax Advisor to provide its determinations and any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable supporting calculations with respect to long-term incentives including any equity-based or equity-related awards (whether payable the Employee to the Company and the Employee. The Company shall bear all fees and expenses charged by the Tax Advisor in cash or in kind)connection with its services. For purposes of making the calculations required by and determinations under this Section 6(g)10, after taking into account the information provided by the Company and the Employee, the Accountants Tax Advisor may make reasonable reasonable, good faith 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, and other applicable legal authority. The Company and the Employee shall furnish to the Accountants Tax Advisor with such information and documents as the Accountants Tax Advisor may reasonably require request to assist the Tax Advisor in order to make a determination making calculations and determinations under this Section 6(g)10. In the event that Section 10(c) applies and a reduction is required to be applied to the Payments thereunder, the Payments shall be reduced by the Company in its reasonable discretion in the following order: (i) reduction of any Payments that are subject to Section 409A of the Code on a pro-rata basis or such other manner that complies with Code Section 409A, as determined by the Company, and the Company shall bear the cost (ii) reduction of all fees the Accountants charge in connection with any calculations contemplated by this Payments that are exempt from Code Section 6(g).409A.
Appears in 4 contracts
Samples: Employment Agreement (CAI International, Inc.), Employment Agreement (CAI International, Inc.), Employment Agreement (CAI International, Inc.)
Section 280G. In (a) Notwithstanding anything to the event contrary herein, if it shall be determined that any payments, distributions, benefits payment or entitlements of benefit hereunder or under any type payable to Employee other plan or agreement or otherwise (collectively “CIC BenefitsPayments”) (i) would constitute an “excess parachute paymentspayment” to the Executive within the meaning of Section 280G of the Code, and (ii) but for this paragraph thus would not be deductible under Section 280G of the Code and would be subject to the excise tax imposed by Section 4999 of the Code or any similar tax (the “Excise 280G Tax”), then Employee’s CIC Benefits and if and only if the Executive would be in a better after-tax position by reducing the Payments, the amounts payable hereunder shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no extent necessary to eliminate any Payments or portion of such benefits the Payments from being non-deductible under Section 280G(b)(1) of the Code and thereby not subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected excise tax imposed by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code). In such case, an amount the Payments shall be reduced so that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt total aggregate value of the Reduced AmountPayments do not exceed 2.99 times the total value of the Executive’s average annualized compensation for the preceding five years. Unless If the Company and Employee otherwise agree in writingdetermines that the Payments constitute “non-qualified deferred compensation” under Section 409A, any determination reduction in the Payments required under to be made pursuant to this Section 6(g8(a) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are with respect to Payments payable in cash under Section 6(d)(ii) before being made in respect to any Payments to be provided in the form of benefits or equity award acceleration, and 6(d)(iii) and then by reducing or eliminating any amounts that are payable in the form of benefits before being made with respect to long-term incentives including equity award acceleration, and in any equity-based or equity-related awards (whether payable case, shall be made with respect to such Payments in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application inverse order of the Code, and other applicable legal authority. The Company and Employee shall furnish scheduled dates or times for the payment or provision of such Payments.
(b) Any determinations to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination be made under this Section 6(g8 shall be made by the Company’s independent public accountants (the “Accounting Firm”), which firm shall provide its determinations and any supporting calculations both to the Company and to the Executive, and shall be binding upon the Company and the Company shall bear Executive. All fees and expenses of the cost of all fees Accounting Firm in performing the Accountants charge determinations referred to in connection with any calculations contemplated by this Section 6(g)shall be borne solely by the Company.
Appears in 4 contracts
Samples: Employment Agreement (Ocera Therapeutics, Inc.), Employment Agreement (Ocera Therapeutics, Inc.), Employment Agreement (Ocera Therapeutics, Inc.)
Section 280G. In Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or any of its Affiliates to Executive or for Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “excess parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 20, be (x) nondeductible under Section 280G of the Code and/or (y) subject to the excise tax imposed under Section 4999 of the Code (or any successor provisions applicable to such Sections) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the Covered Payments will be reduced to the minimum extent necessary (but in no event to less than zero) so that any payments, distributions, benefits or entitlements no portion of any type payable such payment or benefit, as so reduced, is subject to Employee the Excise Tax; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (“CIC Benefits”including the Excise Tax). Any reductions hereunder shall be made in accordance with Section 409A and the following: (A) the payments and benefits that do not constitute nonqualified deferred compensation subject to Section 409A shall be reduced first; and (iB) constitute all other payments and benefits shall then be reduced as follows:
(I) cash payments shall be reduced before non-cash payments; and (II) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. Any determination required under this Section 20, including, but not limited to, whether any payments or benefits are or could be “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected determined by the Company prior to a Change of Control Board (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(gits designee).
Appears in 4 contracts
Samples: Chief Executive Officer Employment Agreement (Tellurian Inc. /De/), Executive Employment Agreement (Creek Road Miners, Inc.), Employment Agreement (Creek Road Miners, Inc.)
Section 280G. In (a) Notwithstanding anything contained in this Employment Agreement to the event contrary, (i) to the extent that any payments, distributions, benefits payment or entitlements distribution of any type to or for the Executive by the Company, any Affiliate of the Company, any Person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Code and the regulations thereunder), or any Affiliate of such Person, whether paid or payable or distributed or distributable pursuant to Employee the terms of this Employment Agreement or otherwise (the “CIC BenefitsPayments”) (i) constitute “parachute payments” (within the meaning of Section 280G of the Code), and if (ii) but for this paragraph would be subject to such aggregate would, if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), be less than the amount the Executive would receive, after all taxes, if the Executive received aggregate Payments equal (as valued under Section 280G of the Code) to only three times the Executive’s “base amount” (within the meaning of Section 280G of the Code), less $1.00, then Employee’s CIC Benefits (iii) such Payments shall be reduced (but not below zero) if and to such lesser amount (the “Reduced Amount”) extent necessary so that would result in no portion of such benefits being Payments to be made or benefit to be provided to the Executive shall be subject to the Excise Tax; provided that such amounts . All determinations required to be made under this Section 7.2 shall not be so reduced if the Company determines, based on the advice of made by a nationally recognized accounting firm selected that is (i) not serving as accountant or auditor for the individual, entity or group effecting the Change in Control and (ii) agreed upon by the Company prior to a Change of Control and the Executive (the “AccountantsAccounting Firm”), which shall provide detailed supporting calculations (which detailed supporting calculations shall include specific information about each Payment (including the amount of each Payment) and such other information as the Executive shall reasonably request or need to make the determination required of the Executive under this Section 7.2 both to the Company and the Executive within thirty (30) business days after the Termination Date (or such earlier time as is requested by the Company) and an opinion to the Executive that without such reduction Employee would be entitled he has substantial authority not to receive and retain, on a net after tax basis (including, without limitation, report any excise taxes payable Excise Tax imposed under Section section 4999 of the CodeCode on his federal income tax return with respect to the Payments (as eliminated or reduced, if applicable, under such initial determination), an amount that is greater than . Any such determination by the amount, on a net after tax basis, that Employee would Accounting Firm shall be entitled to retain binding upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writingthe Executive. If the Payments are so reduced, any determination required under this Section 6(gthe Company shall reduce or eliminate the Payments (A) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that Payments which are not payable in cash under Section 6(d)(ii(other than that portion of the Payments subject to clause (C) and 6(d)(iiihereof), (B) and then by reducing or eliminating any amounts cash payments (other than that are payable with respect portion of the Payments subject to long-term incentives including any equity-based clause (C) hereof) and (C) then by reducing or equity-related awards eliminating the portion of the Payments (whether payable in cash or not payable in kindcash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time.
(b) It is possible that after the determinations and selections made pursuant to this Section 7.2 the Executive will receive Payments that are, in the aggregate, either more or less than the amount provided under this Section 7.2 (hereafter referred to as an “Excess Payment” or “Underpayment,” respectively). For purposes If it is established, pursuant to a final determination of making a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then the calculations required by this Executive shall promptly pay an amount equal to the Excess Payment to the Company, together with interest on such amount at the applicable federal rate (as defined in and under Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application 1274(d) of the Code) from the date of the Executive’s receipt of such Excess Payment until the date of such payment. In the event that it is determined (i) by a court or (ii) by the Accounting Firm upon request by a Party, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g)that an Underpayment has occurred, and the Company shall bear promptly pay an amount equal to the cost Underpayment to the Executive, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the Executive had the provisions of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)7.2 not been applied until the date of such payment.
Appears in 4 contracts
Samples: Employment Agreement, Employment Agreement (Humana Inc), Employment Agreement (Humana Inc)
Section 280G. In 6.1 If any payment or benefit (including payments and benefits pursuant to this Agreement) that Executive would receive in connection with a Change in Control from the event that any payments, distributions, benefits Company or entitlements of any type payable to Employee otherwise (“CIC BenefitsTransaction Payment”) would (ia) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, ; and (iib) but for this paragraph the net after-tax benefit that Executive would be subject receive by reducing the Transaction Payments to three times the excise tax imposed by “base amount,” as defined in Section 4999 280G(b)(3) of the Code Code, (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced AmountParachute Threshold”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after after-tax basis, that Employee benefit Executive would be entitled to retain upon receipt receive if the full amount of the Reduced Amount. Transaction Payments were paid to Executive, then the Transaction Payments payable to Executive shall be reduced (but not below zero) so that the Transaction Payments due to Executive do not exceed the amount of the Parachute Threshold, reducing first any Transaction Payments under Sections 5.5(a) hereof.
6.2 Unless Executive and the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) section shall be made in writing in good faith by the Company’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g), the The 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, and other applicable legal authority. The Accountants shall provide detailed supporting calculations to the Company and Employee Executive as requested by the Company or Executive at least thirty (30) days prior to the date the excise tax imposed by Section 4999 of the Code (including any interest, penalties or additions to tax relating thereto) is required to be paid by Executive or withheld by the Company. Executive and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the section. The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 6(g)section as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code.
Appears in 3 contracts
Samples: Executive Employment Agreement (Enterprise Financial Services Corp), Executive Employment Agreement (Enterprise Financial Services Corp), Executive Employment Agreement (Enterprise Financial Services Corp)
Section 280G. Notwithstanding any other provision of this letter agreement:
(a) In the event it is determined by an independent nationally recognized public accounting firm that any paymentsis reasonably acceptable to you, distributions, benefits or entitlements which is engaged and paid for by the Company prior to the consummation of any type payable transaction constituting a 280G Change of Control (which for purposes of this Section 6 shall mean a change in ownership or control as determined in accordance with the regulations promulgated under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), which accounting firm shall in no event be the accounting firm for the entity seeking to Employee effectuate the 280G Change of Control (the “CIC BenefitsAccountant”) ), which determination shall be certified by the Accountant and set forth in a certificate delivered to you not less than ten Business Days prior to the 280G Change of Control setting forth in reasonable detail the basis of the Accountant’s calculations (i) including any assumptions that the Accountant made in performing the calculations), that part or all of the consideration, compensation or benefits to be paid to you under this letter agreement constitute “parachute payments” within the meaning of under Section 280G 280G(b)(2) of the Code, and then, if the aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to you under any other plan, arrangement or agreement which constitute “parachute payments” (iicollectively, the “Parachute Amount”) but exceeds the maximum amount that would not give rise to any liability under Section 4999 of the Code, the amounts constituting “parachute payments” which would otherwise be payable to you or for this paragraph would your benefit shall be subject reduced to the excise tax imposed by maximum amount that would not give rise to any liability under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax); provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), Accountant determines that without such reduction Employee you would be entitled to receive and retain, on a net after after- tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that which is greater than the amount, on a net after after-tax basis, that Employee you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required In connection with making determinations under this Section 6(g6, the Accountant shall take into account any positions to mitigate any excise taxes payable under Section 4999 of the Code, such as the value of any reasonable compensation for services to be rendered by you before or after the 280G Change of Control.
(b) If the determination made pursuant to Section 6(a) results in a reduction of the payments that would otherwise be paid to you except for the application of this Section 6, the Company shall promptly give you notice of such determination. Such reduction in payments shall be made first applied to reduce any cash payments that you would otherwise be entitled to receive (whether pursuant to this letter agreement or otherwise) and shall thereafter be applied to reduce other payments and benefits, in writing each case, in good faith reverse order beginning with the payments or benefits that are to be paid the furthest in time from the date of such determination, unless, to the extent permitted by Section 409A (as defined in Section 13(h)), you elect to have the reduction in payments applied in a different order; provided that, in no event may such payments be reduced in a manner that would result in subjecting you to additional taxation under Section 409A. Within ten Business Days following such determination, the Company shall pay or distribute to you or for your benefit such amounts as are then due to you under this letter agreement and shall promptly pay or distribute to you or for your benefit in the future such amounts as become due to you under this letter agreement.
(c) As a result of the uncertainty in the application of Sections 280G and 4999 of the Code at the time of a determination hereunder, it is possible that amounts will have been paid or distributed by the AccountantsCompany to or for your benefit pursuant to this letter agreement which should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for your benefit pursuant to this letter agreement could have been so paid or distributed (each, an “Underpayment”), in each case, consistent with the calculation of the Reduced Amount hereunder. In the event that the Accountant, based upon the assertion of a reduction deficiency by the Internal Revenue Service against either the Company or you which the Accountant believes has a high probability of benefits hereundersuccess, benefits determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for your benefit shall promptly be repaid by you to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code; provided, however, that no such repayment shall be reduced by first reducing or eliminating required if and to the portion extent such deemed repayment would not either reduce the amount on which you are subject to tax under Sections 1 and 4999 of the CIC Benefits Code or generate a refund of such taxes. In the event that are payable the Accountant, based on controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for your benefit together with interest at the applicable federal rate provided for in cash under Section 6(d)(ii7872(f)(2)(A) and 6(d)(iiiof the Code.
(d) and then by reducing In the event of any dispute with the Internal Revenue Service (or eliminating any amounts that are payable other taxing authority) with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of this Section 6, you shall control the Code, issues involved in such dispute and other applicable legal authoritymake all final determinations with regard to such issues. The Company will bear all fees and Employee shall furnish expenses of any audit, suit or proceeding by the IRS or any other taxing authority against the Company or against you, or of any claim for refund, appellate procedure, or suit brought by the Company or you against the IRS or any other taxing authority, in each case relating to the Accountants such information and documents as excise tax imposed by Section 4999 of the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Code.
Appears in 3 contracts
Samples: Employment Agreement (Charge Enterprises, Inc.), Employment Agreement (Charge Enterprises, Inc.), Employment Agreement (Charge Enterprises, Inc.)
Section 280G. (a) In the event that any payments, distributions, benefits the Company or entitlements of any type payable to Employee Parent undergoes a “change in ownership or control” (“CIC Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code and the regulations and guidance promulgated thereunder (“Section 280G”)) before the Company or Parent or any Affiliate of the Company or Parent that would be treated, together with the Company or Parent, as a single corporation under Section 280G has stock that is readily tradeable on an established securities market or otherwise (within the meaning of Section 280G) and all, or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company or Parent (collectively, the “Total Payments”), could constitute an “excess parachute payment” within the meaning of Code Section 280G, the Company will use its reasonable best efforts to seek shareholder approval of the Total Payments in a manner that satisfies the requirements of the “shareholder approval” exception to Section 280G, such that, if approved, all Total Payments may be made to the Executive without the application of the excise tax imposed by Section 4999 of the Code.
(b) In the event that the Company or Parent undergoes a “change in ownership or control” (within the meaning of Section 280G) before the Company or Parent or any Affiliate of the Company or Parent that would be treated, together with the Company or Parent, as a single corporation under Section 280G has stock that is readily tradeable on an established securities market or otherwise (within the meaning of Section 280G) and all, or any portion, of the Total Payments could constitute an “excess parachute payment” within the meaning of Section 280G, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G (the “Limited Amount”), or (ii) but for this paragraph would be subject if the amount of the Total Payments (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the “Excise Tax”) and the amount of all other applicable federal, state and local taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), then the amount of the Total Payments otherwise payable without regard to clause (i). If it is determined that the Limited Amount will maximize the Employee’s CIC Benefits after-tax proceeds, the Total Payments shall be reduced to such lesser amount equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section 1.280G-1 of the “Reduced Amount”Treasury Regulations does not apply, (iii) third, by reducing all remaining payments and benefits that would result in no portion of such are exempt from Section 409A and (iv) finally, by reducing payments and benefits being that are subject to Section 409A, in each case, with all such reductions done on a pro rata basis. All determinations made pursuant this Section 14 will be made at the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized Company’s or its Affiliates’ expense by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G and Section 4999 of the Code selected by the Company prior to a Change of Control for such purpose (the “AccountantsIndependent Advisors”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making such determinations, no portion of the calculations required Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by this reason of Section 6(g)280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and other applicable legal authority. The Company and Employee intent of this Section 14, the excess amount shall furnish be returned immediately by the Executive to the Accountants such information Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and documents as the Accountants may reasonably require in order to make a determination under intent of this Section 6(g)14, and the Company additional amount shall bear be paid immediately by Parent, the cost Company, or any Affiliate of all fees Parent or the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company, as applicable, to the Executive.
Appears in 3 contracts
Samples: Employment Agreement (Albireo Pharma, Inc.), Employment Agreement (Albireo Pharma, Inc.), Employment Agreement (Albireo Pharma, Inc.)
Section 280G. In (a) Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the event that contrary, if any paymentsof the payments or benefits received or to be received by Executive (including, distributionswithout limitation, any payment or benefits received in connection with a Change in Control or entitlements Executive’s termination of employment, whether pursuant to the terms of this Agreement or any type payable to Employee (“CIC Benefits”) (iother plan, arrangement, or agreement, or otherwise) 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 paragraph would will be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits the Company shall either (i) reduce (but not below zero) such payments or benefits received or to be received by Executive so that the aggregate present value of the payments and benefits received by Executive is $1.00 less than the amount which would otherwise cause Executive to incur an Excise Tax, or (ii) be paid in full, whichever results in the greatest net after-tax payment to Executive.
(b) All calculations and determinations under this Section 5.8 shall be reduced to such lesser amount made by an independent accounting firm or independent tax counsel appointed by the Company (the “Reduced AmountTax Counsel”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts whose determinations shall not be so reduced if the Company determines, based conclusive and binding on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g)5.8, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(g), and the 5.8. The Company shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 6(g)its services.
Appears in 3 contracts
Samples: Executive Employment Agreement (Waitr Holdings Inc.), Executive Employment Agreement (Waitr Holdings Inc.), Executive Employment Agreement (Waitr Holdings Inc.)
Section 280G. In Notwithstanding any other agreement between the Combined Company and Executive, in the event that any payments, distributions, payment or benefits provided to Executive (whether made or entitlements of any type payable provided pursuant to Employee (“CIC Benefits”) (ithis Agreement or otherwise) constitute “parachute payments” within the meaning of Section 280G of the Code, Code (“Parachute Payments”) and (ii) but for this paragraph would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits Executive shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive either (i) the full amount of the Parachute Payments, or (ii) the maximum amount that may be provided to Executive without resulting in any portion of such Parachute Payments being subject to such Excise Tax, whichever of clauses (i) and retain(ii), after taking into account applicable Federal, state, and local taxes and the Excise Tax, results in the receipt by the Executive, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest portion of the Parachute Payments. Unless Any reduction of the Company Parachute Payments pursuant to the foregoing shall occur in the following order: (a) any cash payment under any retention bonus agreement or similar agreement, (b) any cash severance payable by reference to Executive’s Base Salary and Employee otherwise agree Annual Bonus; (c) any other cash amount payable to Executive; (d) any benefit valued as a Parachute Payment; and (e) acceleration of vesting of any equity award. Such reduction shall be first applied to payments and benefits in writing, any each of the forgoing categories in reverse order beginning with the payments or benefits that are to be paid the furthest in time from the date of such determination. Any determination required under this Section 6(g) 6.14 shall be made in writing in good faith by a nationally recognized public accounting firm designated by public accountants of the Accountants. In the event of a reduction of benefits hereunderCombined Company, benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding for all purposes upon the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) Combined Company and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive. For purposes of making the calculations any calculation required by this Section 6(g)6.14, the Accountants such accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).
Appears in 3 contracts
Samples: Employment Agreement (Amentum Holdings, Inc.), Employment Agreement (Amentum Holdings, Inc.), Employment Agreement (Amentum Holdings, Inc.)
Section 280G. In Notwithstanding anything to the event contrary contained in this Agreement, to the extent that any paymentsof the payments and benefits provided for under this Agreement or any other agreement or arrangement between Executive and the Company (collectively, distributions, benefits or entitlements of any type payable to Employee (the “CIC BenefitsPayments”) (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph Section 11, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits the Payments shall be reduced payable either (i) in full or (ii) as to such lesser amount (the “Reduced Amount”) that which would result in no portion of such benefits Payments being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable 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 Executive’s receipt on an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of economic benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Executive and the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) 11 shall be made in writing in good faith by the Company’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose reasonable determination shall be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g)11, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Sections 280G and 4999 of the Code, . Executive and other applicable legal authority. The the Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g)11. If a reduction in Payments is necessary so that no portion of the Payments is subject to the excise tax under Section 4999 of the Code, reduction shall occur in the manner that results in the greatest economic benefit to Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. If this Section 11 is applied to reduce an amount payable to Executive, and the Internal Revenue Service successfully asserts that, despite the reduction, Executive has nonetheless received payments which are in excess of the maximum amount that could have been paid to her without being subjected to any excise tax, then, unless it would be unlawful for the Company shall bear make such a loan or similar extension of credit to Executive, Executive may repay such excess amount to the cost Company though such amount constitutes a loan to Executive made at the date of all fees payment of such excess amount, bearing interest at 120% of the Accountants charge applicable federal rate (as determined under section 1274(d) of the Code in connection with any calculations contemplated by this Section 6(grespect of such loan).
Appears in 3 contracts
Samples: Employment Agreement (Aerie Pharmaceuticals Inc), Employment Agreement (Aerie Pharmaceuticals Inc), Employment Agreement (Aerie Pharmaceuticals Inc)
Section 280G. In (i) If any of the event that payments or benefits which Executive receives or may receive in the future (including, without limitation, any paymentspayments or benefits received in connection with a Change in Control or the termination of Executive’s employment, distributionswhether pursuant to this Agreement or any other plan, benefits arrangement or entitlements of any type payable to Employee (“CIC Benefits”agreement, or otherwise) (icollectively, “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986 (the “Code”) and would, and (ii) but for this paragraph would Section, be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits such 280G Payments shall be reduced to such lesser amount in a manner determined by the Employer Group (by the “Reduced Amount”minimum possible amounts) that would result in is consistent with the requirements of Section 409A of the Code until no portion of such benefits being amount payable to the Executive will be subject to the Excise Tax; provided that such . If two economically equivalent amounts are subject to reduction but are payable at different times, the amounts shall be reduced (but not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, below zero) on a net after tax basis pro rata basis.
(including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company ii) All calculations and Employee otherwise agree in writing, any determination required determinations under this Section 6(g) shall be made in writing in good faith by an independent accounting firm or independent tax counsel appointed by the Accountants. In the event of a reduction of benefits hereunder, benefits Employer Group (“Tax Counsel”) whose determinations shall be reduced by first reducing or eliminating conclusive and binding on the portion of Employer Group and the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g)Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company Employer Group and Employee the Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require reasonable request in order to make a determination its determinations under this Section 6(g), and the Company Section. The Employer Group shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 6(g)its services.
Appears in 3 contracts
Samples: Executive Employment Agreement (YADKIN FINANCIAL Corp), Executive Employment Agreement (YADKIN FINANCIAL Corp), Executive Employment Agreement (YADKIN FINANCIAL Corp)
Section 280G. In the event that any payments, distributions, benefits or entitlements of any type payable to Employee (“CIC Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g5(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating the non-cash portion of the CIC Benefits, in each case, in reverse order beginning with payments or benefits which are to be paid the furthest in the future; provided, however, that for purposes of the foregoing sequence, any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)) shall be deemed to be a non-cash portion of the CIC Benefits. For purposes of making the calculations required by this Section 6(g5(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g5(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g5(g).
Appears in 3 contracts
Samples: Employment Agreement (XPO Logistics, Inc.), Employment Agreement (XPO Logistics, Inc.), Employment Agreement (XPO Logistics, Inc.)
Section 280G. In the event that any payments, distributions, benefits or entitlements of any type payable to Employee Executive (“CIC Termination Benefits”) (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 paragraph Section 5(g) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s CIC Termination Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee Executive would be entitled to receive and retain, on a net after after-tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after after-tax basis, that Employee Executive would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 6(g5(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating in the portion order that results in the greatest economic benefit to Executive in a manner that would not result in subjecting Executive to additional taxation under Section 409A of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Code. For purposes of making the calculations required by this Section 6(g)paragraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably require required in order to make a determination under this Section 6(g)paragraph, and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g5(g). In no event shall Executive be entitled hereunder to a gross up from the Company to cover any Excise Tax to which he may be subject.
Appears in 3 contracts
Samples: Employment Agreement (Vista Outdoor Inc.), Employment Agreement (Alliant Techsystems Inc), Employment Agreement (Vista Outdoor Inc.)
Section 280G. In the event that any payments, distributions, the severance and other benefits provided for in this Agreement or entitlements of any type otherwise payable to Employee (“CIC Benefits”) Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph Section 9, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employeethen, Executive’s CIC Benefits severance and other benefits under this Agreement shall be reduced payable either (i) in full, or (ii) as to such lesser amount (the “Reduced Amount”) that which would result in no portion of such severance and other benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt whichever of the Reduced Amountforegoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by Employee on an after-tax basis of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro rata reduction of (i) cash payments subject to Section 409A as deferred compensation and (ii) cash payments not subject to Section 409A, and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A as deferred compensation and (ii) equity-based compensation not subject to Section 409A. Reduction in either cash payments or equity compensation benefits shall be made prorata between and among benefits which are subject to Section 409A and benefits which are exempt from Section 409A. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) 9 shall be made in writing in good faith by the Company’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding upon Employee and the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g)9, the 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, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the 9. The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 6(g)9.
Appears in 3 contracts
Samples: Executive Employment Agreement (Neoleukin Therapeutics, Inc.), Executive Employment Agreement (Neoleukin Therapeutics, Inc.), Executive Employment Agreement (Neoleukin Therapeutics, Inc.)
Section 280G. In If the event that any paymentspresent value of your severance benefits, distributions, benefits either alone or entitlements of any type payable together with other payments which you have the right to Employee receive from the Company (the “CIC Benefits”) (i) constitute a “parachute paymentspayment” within the meaning of as defined in Section 280G of the Code, and then your Benefits shall be either (i) provided to you in full, or (ii) but for this paragraph provided to you only as to such lesser extent that would be result in no portion of such Benefits being subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser whichever of the foregoing amounts, taking into account the applicable federal, state, and local income and employment taxes and the Excise Tax, results in the receipt by you, on an after-tax basis, of the greatest amount (the “Reduced Amount”) of benefits, notwithstanding that would result in no all or some portion of such benefits being subject to Benefits may be taxable under the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee you otherwise agree in writingagree, any determination required under this Section 6(g) section shall be made in writing in good faith by the Company’s independent accounting firm or such other nationally or regionally recognized accounting firm selected by the Company (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. In the event of that a reduction to the Benefits under this section, the reduction shall apply first to the Benefits that are not deferred compensation subject to Section 409A of benefits hereunderthe Code and you shall be given the choice, benefits subject to approval by the Company, of which of such Benefits to reduce; provided, that such reduction achieves the result specified in clause (ii) above of this section. If a reduction in the Benefits that are subject to Section 409A of the Code is required, such Benefits shall be reduced by first reducing or eliminating pro rata, but with no change in the portion of the CIC time at which such Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)shall be paid. For purposes of making the calculations required by this Section 6(g)section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee you shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the section. The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 6(g)section.
Appears in 3 contracts
Samples: Employment Agreement (Longeveron Inc.), Employment Agreement (Longeveron Inc.), Employment Agreement (Longeveron Inc.)
Section 280G. In (a) The Executive shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the event Code (such excise tax being the “Excise Tax”); provided, however, that any paymentspayment or benefit received or to be received by the Executive, distributionswhether payable under the terms of this Agreement or any other plan, benefits arrangement or entitlements agreement with Company or an affiliate of any type payable to Employee Company (collectively, the “CIC BenefitsPayments”) that would constitute a “parachute payment” within the meaning of Section 280G of the Code, shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax but only if, by reason of such reduction, the net after-tax benefit received by the Executive shall exceed the net after-tax benefit that would be received by the Executive if no such reduction was made.
(b) The “net after-tax benefit” shall mean (i) the Payments which the Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, and less (ii) but the amount of all federal, state and local income and employment taxes payable by the Executive with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to the Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Tax imposed with respect to the payments and benefits described in (b)(i) above.
(c) All determinations under this paragraph Section 9 will be made by an accounting firm or law firm (the “280G Firm”) that is mutually agreed to by the Executive and the Company prior to a change in ownership or control of a corporation (within the meaning of Treasury regulations under Section 280G of the Code). The 280G Firm shall be required to evaluate the extent to which payments are exempt from Section 280G of the Code as reasonable compensation for services rendered before or after the Change in Control. All fees and expenses of the 280G Firm shall be paid solely by the Company. The Company will direct the 280G Firm to submit any determination it makes under this Section 9 and detailed supporting calculations to both the Executive and the Company as soon as reasonably practicable.
(d) If the 280G Firm determines that one or more reductions are required under this Section 9, such Payments shall be reduced in the order that would provide the Executive with the largest amount of after-tax proceeds (with such order, to the extent permitted by Sections 280G and 409A of the Code, designated by the Executive, or otherwise determined by the 280G Firm) to the extent necessary so that no portion thereof shall be subject to the excise Excise Tax, and the Company shall pay such reduced amount to the Executive. The Executive shall at any time have the unilateral right to forfeit any equity award in whole or in part.
(e) As a result of the uncertainty in the application of Section 280G of the Code at the time that the 280G Firm makes its determinations under this Section 9, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed (collectively, the “Overpayments”), or that additional amounts should be paid or distributed to the Executive (collectively, the “Underpayments”). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Executive or the Company, which assertion the 280G Firm believes has a high probability of success or is otherwise based on controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay the Overpayment to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion or generate a refund of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable imposed under Section 4999 of the Code). If the 280G Firm determines, an amount that is greater than the amount, on a net after tax basisbased upon controlling precedent or substantial authority, that Employee would be entitled an Underpayment has occurred, the 280G Firm will notify the Executive and the Company of that determination, and the Company will promptly pay the amount of that Underpayment to retain upon receipt the Executive without interest.
(f) The Executive and the Company will provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the Reduced Amount. Unless the Company determinations and Employee otherwise agree in writing, any determination required under calculations contemplated by this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)9. For purposes of making the calculations required by this Section 6(g)9, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and 280G Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).
Appears in 3 contracts
Samples: Employment Agreement (LIGHTBRIDGE Corp), Employment Agreement (LIGHTBRIDGE Corp), Employment Agreement (LIGHTBRIDGE Corp)
Section 280G. In Notwithstanding anything contained herein to the event that contrary, if any paymentsamounts or benefits provided for in this Agreement, distributions, when aggregated with any other payments or benefits payable or entitlements of any type payable provided to Employee the Awardee (the “CIC BenefitsTotal Payments”) would (i) constitute “parachute payments” within the meaning of Section 280G of the Code (which will not include any portion of payments classified as payments of reasonable compensation for purposes of Section 280G of the Code, including without limitation amounts allocated to any restrictive covenants), and (ii) but for this paragraph Section 8, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall the Total Payments will be reduced either: (a) provided in full, or (b) provided as to such lesser amount (the “Reduced Amount”) that extent as would result in no portion of such benefits Total Payments being subject to the Excise Tax; provided , whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the Excise Tax, results in the Awardee’s receipt on an after-tax basis of the greatest amount of the Total Payments, notwithstanding that such amounts shall not all or some portion of the Total Payments may be so reduced if subject to the Company determinesExcise Tax. To the extent any reduction in Total Payments is required by this Section 8, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled shall occur to receive the payments and retain, on a net after tax basis (including, without limitation, any excise taxes payable under benefits in the order that results in the greatest economic present value of all payments and benefits actually made to Awardee. Subject to Section 4999 409A of the Code), an amount that is greater than such order of reductions shall be determined by the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced AmountAwardee. Unless the Company and Employee the Awardee otherwise agree in writing, any determination required under this Section 6(g) 8 shall be made in writing in good faith by an independent public accounting firm mutually acceptable to the Company and the Awardee (the “Accountants. In the event of a reduction of benefits hereunder, benefits ”) whose determination shall be reduced by first reducing or eliminating conclusive and binding upon the portion of Awardee and the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g)8, the 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, and other applicable legal authority. The Company and Employee the Awardee shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the 8. The Company shall bear the cost of pay all fees and expenses of the Accountants charge in connection with any calculations contemplated by this Section 6(g)Accountants.
Appears in 3 contracts
Samples: Restricted Stock Unit Award Agreement (Data Storage Corp), Restricted Stock Unit Award Agreement (Data Storage Corp), Restricted Stock Unit Award Agreement (Synthetic Biologics, Inc.)
Section 280G. In (a) Notwithstanding any other provision of this Agreement, in the event that the Executive becomes entitled to receive or receives any payments, distributionsoptions, awards or benefits or entitlements (including, without limitation, the monetary value of any type payable to Employee non-cash benefits and the accelerated vesting of equity-based awards) under this Agreement or under any other plan, agreement or arrangement with the Company, any person whose actions result in a change of control of the Company or any person affiliated with the Company or such person (collectively, the “CIC BenefitsPayments”) (i) ), that may separately or in the aggregate constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any similar or successor provision (“Section 280G”) and (ii) it is determined that, but for this paragraph would Section 23(a), any of the Payments will be subject to the any excise tax imposed by pursuant to Section 4999 of the Code or any similar or successor provision, the Company shall pay to the Executive an amount equal to the Payments, reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Section 280G).
(b) All computations and determinations called for by this Section 23 shall be made and reported in writing to the Company and the Executive by an independent accounting firm or independent tax counsel appointed by the Company (the “Excise TaxTax Advisor”), then Employee’s CIC Benefits and all such computations and determinations shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based conclusive and binding on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive. For purposes of making the such calculations required by this Section 6(g)and determinations, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Advisor may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Company and Employee the Executive shall furnish to the Accountants Tax Advisor such information and documents as the Accountants Tax Advisor may reasonably require request in order to make a determination under this Section 6(g), their required calculations and the determinations. The Company shall bear the cost of all fees and expenses charged by the Accountants charge Tax Advisor in connection with its services.
(c) In the event that Section 23(a) applies and a reduction is required to be applied to the Payments thereunder, the Payments shall be reduced by the Company in its reasonable discretion in the following order: (i) reduction of any calculations contemplated Payments that are exempt from Code Section 409A and (ii) reduction of any Payments that are subject to Code Section 409A on a pro-rata basis or such other manner that complies with Code Section 409A, as determined by this Section 6(g)the Company.
Appears in 3 contracts
Samples: Employment Agreement (American Apparel, Inc), Employment Agreement (American Apparel, Inc), Employment Agreement (American Apparel, Inc)
Section 280G. (a) Notwithstanding anything to the contrary herein, Section 11(b) shall apply in the event that the Company satisfies the requirement of Section 280G(b)(5)(A)(ii)(I) of the Code. In the event that the Company does not satisfy such requirement, Section 11(c), not Section 11(b), shall apply.
(b) Prior to any change described in Section 280G(b)(2)(A)(i) of the Code (a "Section 280G Transaction") and in accordance with the requirements of Section 280G(b)(5)(B) of the Code, the Company shall seek, but shall not be required to obtain, approval by its shareholders of any payments, distributionsoptions, awards or benefits or entitlements (including, without limitation, the monetary value of any type payable to Employee non-cash benefits and the accelerated vesting of stock options) under this Agreement or under any other plan, agreement or arrangement with the Company, any person whose actions result in a Section 280G Transaction or any person affiliated with the Company or such person (“CIC Benefits”) (i) collectively, the "Payments"), that may separately or in the aggregate constitute “"parachute payments” " within the meaning of Section 280G (collectively, the "Potential Parachute Payments"). In the event that the shareholders of the Company do not approve the Employee's Potential Parachute Payments in accordance with Section 280G(b)(5)(B) of the Code, the Employee will have no right or entitlement to receive or retain, as the case may be, that portion of his Potential Parachute Payments that would otherwise cause any portion of any of his Potential Parachute Payments to be treated as an "excess parachute payment" (within the meaning of Section 280G).
(c) In the event that the Employee becomes entitled to receive or receives any Payments and (ii) it is determined that, but for this paragraph would Section 11(c), any of the Payments will be subject to the any excise tax imposed by pursuant to Section 4999 of the Code or any similar or successor provision (the “"Excise Tax”"), then Employee’s CIC Benefits the Company shall be pay to the Employee either (i) the full amount of the Payments or (ii) an amount equal to the Payments, reduced by the minimum amount necessary to such lesser amount prevent any portion of the Payments from being an "excess parachute payment" (within the meaning of Section 280G) (the “Reduced Amount”) "Capped Payments"), whichever of the foregoing amounts results in the receipt by the Employee, on an after-tax basis, of the greatest amount of Payments notwithstanding that would result in no all or some portion of such benefits being the Payments may be subject to the Excise Tax; provided . For purposes of determining whether an Employee would receive a greater after-tax benefit from the Capped Payments than from receipt of the full amount of the Payments, (i) there shall be taken into account any Excise Tax and all applicable federal, state and local taxes required to be paid by the Employee in respect of the receipt of such payments and (ii) such payments shall be deemed to be subject to federal income taxes at the highest rate of federal income taxation applicable to individuals that is in effect for the calendar year in which the benefits are to be paid, and state and local income taxes at the highest rate of taxation applicable to individuals in the state and locality of the Employee’s residence on the effective date of the Section 280G Transaction, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (as determined by assuming that such amounts deduction is subject to the maximum limitation applicable to itemized deductions under Section 68 of the Code and any other limitations applicable to the deduction of state and local income taxes under the Code).
(d) All calculations and determinations under this Section 11, including application and interpretation of the Code and related regulatory, administrative and judicial authorities, shall not be so reduced if the Company determines, based on the advice of a nationally recognized made by an independent accounting firm selected or independent tax counsel appointed by the Company prior to a Change of Control (the “Accountants”"Tax Advisor"), that without such reduction Employee would . All determinations made by the Tax Advisor under this Section 11 shall be entitled to receive conclusive and retain, binding on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless both the Company and Employee otherwise agree in writingthe Employee, and the Company shall cause the Tax Advisor to provide its determinations and any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable supporting calculations with respect to long-term incentives including any equity-based or equity-related awards (whether payable the Employee to the Company and the Employee. The Company shall bear all fees and expenses charged by the Tax Advisor in cash or in kind)connection with its services. For purposes of making the calculations required by and determinations under this Section 6(g)11, after taking into account the information provided by the Company and the Employee, the Accountants Tax Advisor may make reasonable reasonable, good faith 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, and other applicable legal authority. The Company and the Employee shall furnish to the Accountants Tax Advisor with such information and documents as the Accountants Tax Advisor may reasonably require request to assist the Tax Advisor in order to make a determination making calculations and determinations under this Section 6(g)11. In the event that Section 11(c) applies and a reduction is required to be applied to the Payments thereunder, the Payments shall be reduced by the Company in its reasonable discretion in the following order: (i) reduction of any Payments that are subject to Section 409A of the Code on a pro-rata basis or such other manner that complies with Code Section 409A, as determined by the Company, and the Company shall bear the cost (ii) reduction of all fees the Accountants charge in connection with any calculations contemplated by this Payments that are exempt from Code Section 6(g).409A.
Appears in 3 contracts
Samples: Employment Agreement (CAI International, Inc.), Employment Agreement (CAI International, Inc.), Employment Agreement (CAI International, Inc.)
Section 280G. In Notwithstanding anything in this Agreement to the event that any paymentscontrary, distributions, benefits or entitlements of any type payable to Employee if Executive is a "disqualified individual" (“CIC Benefits”as defined in Section 280G(c) (i) constitute “parachute payments” within the meaning of Section 280G of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from Company or any other person, would constitute a "parachute payment" (iias defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but for this paragraph would not below zero) so that the present value of such total amounts and benefits received by Executive from Company and/or such person(s) will be $1.00 less than three (3) times Executive's "base amount" (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better "net after-tax position" to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm or law firm of national reputation that is selected for this purpose by Company (the “Excise Tax”"280G Firm") (with all such costs borne by Company). In order to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G of the Code, the 280G Firm or Company may retain the services of an independent valuation expert. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from Company (or its affiliates) used in determining if a "parachute payment" exists, exceeds $1.00 less than three (3) times Executive's base amount, then Employee’s CIC Benefits Executive shall immediately repay such excess to Company upon notification that an overpayment has been made. Nothing in this paragraph shall require Company to be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determinesresponsible for, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”)or have any liability or obligation with respect to, that without such reduction Employee would be entitled to receive and retain, on a net after Executive's excise tax basis (including, without limitation, any excise taxes payable liabilities under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).
Appears in 3 contracts
Samples: Executive Employment Agreement (Ennis, Inc.), Executive Employment Agreement (Ennis, Inc.), Executive Employment Agreement (Ennis, Inc.)
Section 280G. In (i) If any of the event that payments or benefits received or to be received by the Executive (including, without limitation, any paymentspayment or benefits received in connection with a Change in Control or the Executive’s termination of employment, distributionswhether pursuant to the terms of this Agreement or any other plan, benefits arrangement or entitlements of any type payable to Employee (“CIC Benefits”agreement, or otherwise) (iall such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the CodeCode and would, and (ii) but for this paragraph would Section F.7, be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits such 280G Payments shall be reduced (by the minimum possible amounts) in a manner determined by the Company that is consistent with the requirements of Section 409A, until no amount payable to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being Executive will be subject to the Excise Tax; provided that such . If two economically equivalent amounts are subject to reduction but are payable at different times, the amounts shall be reduced (but not below zero) on a pro rata basis.
(ii) All calculations and determinations under this Section F.7 shall be so reduced if the Company determines, based on the advice of a nationally recognized made by an independent accounting firm selected or independent tax counsel appointed by the Company prior to a Change of Control (the “AccountantsTax Counsel”), that without such reduction Employee would ) whose determinations shall be entitled to receive conclusive and retain, binding on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g)F.7, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee the Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(g), and the F.7. The Company shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 6(g)its services.
Appears in 2 contracts
Samples: Employment Agreement (RBB Bancorp), Employment Agreement (RBB Bancorp)
Section 280G. In the event that any payments, distributions, payments or benefits or entitlements of any type otherwise payable to Employee Executive (“CIC Benefits”) (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 paragraph Section 8, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits shall such payments and benefits will be reduced either (i) delivered in full, or (ii) delivered as to such lesser amount (the “Reduced Amount”) extent that would result in no portion of such payments and benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the excise tax imposed by Section 4999 of the Code (and any equivalent state or local excise taxes), results in the receipt by Executive on an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of benefits, notwithstanding that all or some portion of such payments and benefits may be taxable under Section 4999 of the Code. Unless the Company and Employee Parties otherwise agree in writing, any determination required under this Section 6(g) shall 8 will be made in writing in good faith by a nationally- recognized accounting firm selected jointly by Employer and Executive (the “Accountants. In the event of a reduction of benefits hereunder”), benefits shall whose determination will be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) conclusive and 6(d)(iii) binding upon Executive and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Employer for all purposes. For purposes of making the calculations required by this Section 6(g)8, the 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, and other applicable legal authority. The Company and Employee shall Parties agree to furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the Company shall provision. Employer will bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 6(g)provision.
Appears in 2 contracts
Samples: Employment Agreement (First Busey Corp /Nv/), Employment Agreement (First Busey Corp /Nv/)
Section 280G. In (a) If any of the event that payments or benefits received or to be received by the Executive (including, without limitation, any paymentspayment or benefits received in connection with a Change in Control or the Executive’s termination of employment, distributionswhether pursuant to the terms of this Agreement or any other plan, benefits arrangement or entitlements of any type payable to Employee (“CIC Benefits”agreement, or otherwise) (iall such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the CodeCode and would, and (ii) but for this paragraph would Section 5.8, be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits such 280G Payments shall be reduced to such lesser amount or otherwise modified in a manner determined by the Company (by the “Reduced Amount”minimum possible amounts) that would result in is consistent with the requirements of Section 409A of the Code until no portion of such benefits being amount payable to the Executive will be subject to the Excise Tax; provided that such . If two economically equivalent amounts are subject to reduction but are payable at different times, the amounts shall be reduced (but not below zero) on a pro rata basis.
(b) All calculations and determinations under this Section 5.8 shall be so reduced if the Company determines, based on the advice of a nationally recognized made by an independent accounting firm selected or independent tax counsel appointed by the Company prior to a Change of Control (the “AccountantsTax Counsel”), that without such reduction Employee would ) whose determinations shall be entitled to receive conclusive and retain, binding on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g)5.8, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee the Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(g), and the 5.8. The Company shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 6(g)its services.
Appears in 2 contracts
Samples: Employment Agreement (Recovery Energy, Inc.), Employment Agreement (Recovery Energy, Inc.)
Section 280G. In Notwithstanding any other provision of this Agreement or any other agreement between Company and Employee, in the event that any paymentspayment or benefit received or to be received by Employee from Company (collectively with all other such payments and benefits, distributionsthe "TOTAL PAYMENTS") would not be deductible, in whole or in part, by Company as a result of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then, to the extent necessary to make such payments deductible, the benefits or entitlements provided hereunder shall be reduced (if necessary, to zero); provided, however, that Employee may elect which benefits to have reduced (including any benefits under any other agreement in effect between Company and Employee). For purposes of any type payable to Employee (“CIC Benefits”) this limitation, in the event Company asserts that the limitation would apply, (i) no portion of the Total Payments the receipt or enjoyment of which Employee shall have waived at such time and in such manner as not to constitute “a "payment" within the meaning of Section 280G of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account that, in the opinion of tax counsel selected by Company and reasonably accepted by Employee ("TAX COUNSEL"), does not constitute a "parachute payments” payment" within the meaning of Section 280G of the Code, including by reason of Section 280G(b)(4)(A) of the Code, and (iii) the benefits payable under this Agreement shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in the preceding clauses (i) or (ii)) but in their entirety are not, in the opinion of Tax Counsel, subject to disallowance as deductions by reason of Section 280G of the Code. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of Employee and Company in applying the terms of this Section 3(g), the Total Payments paid to or for this paragraph Employee's benefit are in an amount that would result in any portion of such Total Payments being subject to excise tax under Section 280G of the Code, then, if, in the opinion of Tax Counsel, such repayment would result in (A) no portion of the remaining Total Payments being subject to such excise tax, and (B) a dollar-for-dollar reduction in Employee's taxable income and employment taxes, Employee shall be obligated to pay Company, upon demand, an amount equal to the sum of (1) the excess of the Total Payments paid to or for Employee's benefit over the Total Payments that could have been paid to or for Employee's benefit without any portion of such Total Payments being subject to such excise tax, and (2) interest on such amount at the rate provided in Section 1274(b)(2)(B) of the Code from the date of Employee's receipt of such excess until the date of such payment. If, in the opinion of Tax Counsel, such repayment would not result in (x) no portion of the remaining Total Payments being subject to such excise tax, and (y) a dollar-for-dollar reduction in Employee's taxable income and employment taxes, Employee shall be obligated to pay Company, upon demand, an amount equal to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected Internal Revenue Service asserts such amount should have been withheld by the Company) and any penalties or fines imposed on Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In Internal Revenue Service in connection with the event of a reduction of benefits hereunder, benefits shall be reduced failure by first reducing Company to make any withholdings or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating file any amounts that are payable reports with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)disallowed Total Payments.
Appears in 2 contracts
Samples: Transition Services and Employment Agreement (PLM International Inc), Transition Services and Employment Agreement (PLM International Inc)
Section 280G. In (a) If any of the event that payments or benefits received or to be received by the Executive (including, without limitation, any paymentspayment or benefits received in connection with a Change in Control or the Executive’s termination of employment, distributionswhether pursuant to the terms of this Agreement or any other plan, benefits arrangement, or entitlements of any type payable to Employee (“CIC Benefits”agreement, or otherwise) (iall such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the CodeCode and would, and (ii) but for this paragraph would Section 5.9, be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits such 280G Payments shall be reduced to such lesser amount in a manner determined by the Company (by the “Reduced Amount”minimum possible amounts) that would result in is consistent with the requirements of Section 409A until no portion of such benefits being amount payable to the Executive will be subject to the Excise Tax; provided that such . If two economically equivalent amounts are subject to reduction but are payable at different times, the amounts shall be reduced (but not below zero) on a pro rata basis.
(b) All calculations and determinations under this Section 5.7 shall be so reduced if the Company determines, based on the advice of a nationally recognized made by an independent accounting firm selected or independent tax counsel appointed by the Company prior to a Change of Control (the “AccountantsTax Counsel”), that without such reduction Employee would ) whose determinations shall be entitled to receive conclusive and retain, binding on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g)5.9, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee the Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(g), and the 5.9. The Company shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 6(g)its services.
Appears in 2 contracts
Samples: Employment Agreement (Amerinac Holding Corp.), Employment Agreement (Amerinac Holding Corp.)
Section 280G. In the event that any payments, distributions, benefits or entitlements of any type payable to Employee (“CIC Benefits”a) If (i) constitute “parachute payments” within the meaning aggregate of all amounts and benefits due to Employee under this Agreement or under any Company plan, program, agreement or arrangement, would, if received by Employee in full and valued under Section 280G of the Code, constitute “parachute payments” as such term is defined in and under Section 280G of the Code (collectively, “280G Benefits”), and if (ii) but for this paragraph would be subject to such aggregate would, if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced pursuant to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater be less than the amount, on a net after tax basis, that amount Employee would be entitled to retain upon receipt receive, after all taxes, if Employee received aggregate 280G Benefits equal (as valued under Section 280G of the Reduced AmountCode) to only three times Employee’s “base amount”, as defined in and under Section 280G of the Code, less $1.00, then (iii) such cash 280G Benefits (in reverse order of maturity, to the extent that the reduction of such cash 280G Benefits can achieve the intended result) shall be reduced or eliminated to the extent necessary so that the 280G Benefits received by Employee will not constitute parachute payments. Unless the Company and Employee otherwise agree in writing, any determination required under The determinations with respect to this Section 6(g19(a) shall be made in writing in good faith by an independent auditor (the “Auditor”) paid by the AccountantsCompany. The Auditor shall be the Company’s regular independent auditor unless Employee reasonably objects to the use of that firm, in which event the Auditor will be a nationally recognized firm chosen by the parties hereto.
(b) It is possible that, after the determinations and selections made pursuant to Section 19(a), Employee will receive 280G Benefits that are, in the aggregate, either more or less than the amount provided under Section 19(a) (hereafter referred to as an “Excess Payment” or “Underpayment”, respectively). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, Employee shall promptly repay the Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in and under Section 1274(d) of the Code) from the date of Employee’s receipt of such Excess Payment until the date of such repayment. In the event of that it is determined (x) by a reduction of benefits hereunder, benefits shall be reduced court or (y) by first reducing or eliminating the portion Auditor upon request by any of the CIC Benefits parties hereto, that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g)an Underpayment has occurred, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear promptly pay an amount equal to the cost Underpayment to Employee, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to Employee had the provisions of all fees Section 19(a) not been applied until the Accountants charge in connection with any calculations contemplated by this Section 6(g)date of payment.
Appears in 2 contracts
Samples: Employment Agreement (KORU Medical Systems, Inc.), Employment Agreement (KORU Medical Systems, Inc.)
Section 280G. In If any of the event that payments or benefits received or to be received by Executive (including, without limitation, any paymentspayment or benefits received in connection with the termination of Executive’s employment, distributionswhether following a Change in Control or otherwise, benefits whether pursuant to the terms of this Agreement or entitlements of any type payable to Employee (“CIC Benefits”other plan, arrangement or agreement, or otherwise) (iall such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the CodeCode and would, and (ii) but for this paragraph would Section 8.10, be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits prior to making the 280G Payments, a calculation shall be reduced made comparing (a) the Net Benefit (as defined below) to such lesser amount Executive of the 280G Payments after payment of the Excise Tax; to (b) the “Reduced Amount”) that would result in no portion of such benefits Net Benefit to Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax; provided that such amounts shall not be so reduced . Only if the Company determines, based on amount calculated under (a) above is less than the advice of a nationally recognized accounting firm selected by amount under (b) above will the Company prior 280G Payments be reduced to a Change of Control (the “Accountants”), minimum extent necessary to ensure that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 no portion of the Code), an amount that 280G Payments is greater than subject to the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt Excise Tax. “Net Benefit” shall mean the present value of the Reduced Amount280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Unless the Company and Employee otherwise agree in writing, any determination required under Any reduction made pursuant to this Section 6(g) 8.10 shall be made in writing in good faith a manner determined by the Accountants. In Company that is consistent with the event requirements of a reduction of benefits hereunder, benefits Section 409A. All calculations and determinations under this Section 8.10 shall be reduced made by first reducing an independent accounting firm or eliminating independent tax counsel appointed by the portion of Company (the CIC Benefits that are payable in cash under Section 6(d)(ii“Tax Counsel”) whose determinations shall be conclusive and 6(d)(iii) binding on the Company and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g)8.10, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(g), and the 8.10. The Company shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 6(g).connection
Appears in 2 contracts
Samples: Employment Agreement (Celsius Holdings, Inc.), Employment Agreement (Celsius Holdings, Inc.)
Section 280G. In (a) If any of the event that payments or benefits received or to be received by the Executive (including, without limitation, any paymentspayment or benefits received in connection with a Change in Control or the Executive’s termination of employment, distributionswhether pursuant to the terms of this Agreement or any other plan, benefits arrangement, or entitlements of any type payable to Employee (“CIC Benefits”agreement, or otherwise) (iall such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the CodeCode and would, and (ii) but for this paragraph would Section 2.9, be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits such 280G Payments shall be reduced to such lesser amount in a manner determined by the Company (by the “Reduced Amount”minimum possible amounts) that would result in is consistent with the requirements of Section 409A until no portion of such benefits being amount payable to the Executive will be subject to the Excise Tax; provided that such . If two economically equivalent amounts are subject to reduction but are payable at different times, the amounts shall be reduced (but not below zero) on a pro rata basis.
(b) All calculations and determinations under this Section 2.9 shall be so reduced if the Company determines, based on the advice of a nationally recognized made by an independent accounting firm selected or independent tax counsel appointed by the Company prior to a Change of Control (the “AccountantsTax Counsel”), that without such reduction Employee would ) whose determinations shall be entitled to receive conclusive and retain, binding on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g)2.9, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee the Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(g), and the 2.9. The Company shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 6(g)its services.
Appears in 2 contracts
Samples: Separation Pay Agreement (ShockWave Medical, Inc.), Separation Pay Agreement (ShockWave Medical, Inc.)
Section 280G. In (a) Notwithstanding any provision of this Agreement to the event contrary, if any of the payments or benefits received or to be received by the Executive in connection with the Executive’s termination of employment in respect of a Change in Control, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company (all such payments and benefits, being hereinafter referred to as the “Total Payments”), would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Executive shall receive the Total Payments and be responsible for the Excise Tax; provided, however that the Executive shall not receive the Total Payments and the Total Payments shall be reduced to the Safe Harbor Amount (defined below) if (1) the net amount of such Total Payments, as so reduced to the Safe Harbor Amount (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (2) the net amount of such Total Payment without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments). The “Safe Harbor Amount” is the amount to which the Total Payments would hypothetically have to be reduced so that no portion of the Total Payments would be subject to the Excise Tax.
(b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (1) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by the accounting firm which was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments, distributionsincluding by reason of Section 280G(b)(4)(A) of the Code, benefits or entitlements of any type payable to Employee (2) all “CIC Benefits”) (i) constitute “excess parachute payments” within the meaning of Section 280G 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code, and (ii) but for this paragraph would be subject to the excise tax imposed by Section 4999 in excess of the Code base amount (within the “Excise Tax”), then Employee’s CIC Benefits shall be reduced meaning of Section 280G(b)(3) of the Code) allocable to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being reasonable compensation, or are otherwise not subject to the Excise Tax; provided that such amounts , and (3) the value of any noncash benefits or any deferred payment or benefit shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected determined by the Company prior to a Change Auditor in accordance with the principles of Control Sections 280G(d)(3) and (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 4) of the Code). If the Auditor is prohibited by applicable law or regulation from performing the duties assigned to it hereunder, an amount that is greater than the amountthen a different auditor, on a net after tax basis, that Employee would be entitled acceptable to retain upon receipt of the Reduced Amount. Unless both the Company and Employee otherwise agree in writingthe Executive, any determination required under this Section 6(g) shall be made in writing in good faith selected. The fees and expenses of Tax Counsel and the Auditor shall be paid by the Accountants. Company.
(c) In the event of a reduction of benefits hereunderit is determined that the Safe Harbor Amount is payable to the Executive, benefits then the severance payments provided under Section 7.6 which are cash shall first be reduced by first reducing or eliminating on a pro rata basis, and the non-cash severance payments shall thereafter be reduced on a pro rata basis, to the extent necessary so that no portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish Total Payments is subject to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Excise Tax.
Appears in 2 contracts
Samples: Employment Agreement (Versum Materials, Inc.), Employment Agreement (Versum Materials, Inc.)
Section 280G. In the event that the payments and benefits provided under this Agreement and benefits provided to, or for the benefit of, the Executive under any payments, distributions, other Company plan or agreement (such payments or benefits or entitlements of any type payable are collectively referred to Employee (as the “CIC Benefits”) would be subject to the excise tax (ithe “Excise Tax”) constitute imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) in connection with any transaction other than the transactions contemplated by the Merger Agreement, and the Excise Tax applies with respect to the Executive’s compensation (if any) under the Equity Incentive Plan, the Executive shall be entitled to an additional payment by the Company equal to seven and one-half percent (7.5%, or 37.5% of 20%) of the difference obtained by subtracting the Executive’s “base amount” allocated to value or amounts realized by the Executive under the Equity Incentive Plan that are considered parachute payments” within payments under Section 280G(b)(2) of the meaning Code and the regulations thereunder (the “Applicable Amounts”) (as such base amount is determined for purposes of Section 280G of the Code) from the Applicable Amounts. For purposes of clarity, and (ii) but for this paragraph would such payment by the Company shall not be increased with respect to any tax liability incurred by the Executive with respect to such payment; provided, however, that if such payment is triggered in connection with or following a termination of the Executive’s employment, the Company’s obligation to make such payment shall be subject to the excise tax imposed by Section 4999 Executive’s satisfaction of the Code requirements set forth in Sections 5.3(f) and 5.4. Any such payment by the Company pursuant to this Section 5.6 shall be made promptly after the Determination described below is made and in all cases not later than the end of the Executive’s taxable year next following the year in which the Executive remits the related taxes. A determination as to whether any Excise Tax would be imposed on the Benefits for purposes of this Section 5.6, and the determination of any payment due to the Executive pursuant to this Section 5.6, shall be made by the Company’s independent public accountants or another certified public accounting firm or executive compensation consulting firm of national reputation designated by the Company (the “Excise TaxFirm”) at the Company’s expense. The Firm shall provide its determination (the “Determination”), then Employeetogether with detailed supporting calculations and documentation to the Company and the Executive within ten (10) business days of the date of termination of the Executive’s CIC employment, if applicable, or such other time as reasonably requested by the Company or the Executive (provided the Executive reasonably believes that any of the Benefits shall may be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).
Appears in 2 contracts
Samples: Employment Agreement (Isos Acquisition Corp.), Employment Agreement (Isos Acquisition Corp.)
Section 280G. In Notwithstanding anything to the event contrary contained in this Agreement, to the extent that any paymentsof the payments and benefits provided for under this Agreement or any other agreement or arrangement between the Executive and the Company (collectively, distributions, benefits or entitlements of any type payable to Employee (“CIC Benefits”) (ithe "Payments") constitute “a "parachute payments” payment" within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph Section 13(b), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits the Payments shall be reduced payable either (i) in full or (ii) as to such lesser amount (the “Reduced Amount”) that which would result in no portion of such benefits Payments being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable 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 Executive’s receipt on an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of economic benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Executive and the Company and Employee otherwise agree in writing, any determination required under this Section 6(g13(b) shall be made in writing in good faith by the Company’s independent public accountants (the "Accountants. In the event of a reduction of benefits hereunder"), benefits whose reasonable determination shall be reduced by first reducing or eliminating conclusive and binding upon the portion of Executive and the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g13(b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Sections 280G and 4999 of the Code, and other applicable legal authority. The Executive and the Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g13(b). If this Section 13(b) is applied to reduce an amount payable to the Executive, and the Internal Revenue Service successfully asserts that, despite the reduction, the Executive has nonetheless received payments which are in excess of the maximum amount that could have been paid to him without being subjected to any excise tax, then, unless it would be unlawful for the Company shall bear make such a loan or similar extension of credit to the cost Executive, the Executive may repay such excess amount to the Company though such amount constitutes a loan to you made at the date of all fees payment of such excess amount, bearing interest at 120% of the Accountants charge applicable federal rate (as determined under section 1274(d) of the Code in connection with any calculations contemplated by this Section 6(grespect of such loan).
Appears in 2 contracts
Samples: Employment Agreement (Nile Therapeutics, Inc.), Employment Agreement (Arno Therapeutics, Inc)
Section 280G. In Notwithstanding anything to the event contrary contained in this Agreement, to the extent that any paymentsof the payments and benefits provided for under this Agreement or any other agreement or arrangement between Employer and Executive (collectively , distributions, benefits or entitlements of any type payable to Employee (“CIC Benefits”the "Payments") (ia) constitute “a "parachute payments” payment" within the meaning of Section 280G of the Code, Code ("Section 280G") and (iib) but for this paragraph Section 10, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”"Section 4999"), then Employee’s CIC Benefits (i) if immediately prior to transaction that constitutes a "Change in Control" of Employer under Xxxxx. Reg. Section 1.280G which resulted in the Payments, the stock of Employer is not publicly traded and the exemption described in Section 280G(b)(5) of the Code would apply to payments by Employer to the Executive in connection with a Change in Control (as defined in Section 280G and the regulations promulgated thereunder), Employer and Executive shall cooperate in good faith in connection with Employer satisfying the shareholder approval exemption under Section 280G(b)(5) of the Code and the regulations thereunder, and (ii) if clause (i) does not apply, the Payments will be reduced to such lesser amount (the “Reduced Amount”) extent necessary so that would result in no portion of such benefits being Payments retained by Executive will be subject to the Excise Taxexcise tax under Section 4999; provided that such amounts shall not be so reduced if the Company determinesprovided, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”)however, that without such reduction Employee would be entitled to receive will only occur if, after taking into account the applicable federal, state, and retainlocal income taxes and the excise tax imposed by Section 4999, such reduction results in Executive's receipt on a net after an after-tax basis (includingof the greatest amount of benefits under this Agreement, without limitation, any excise taxes payable notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code). To the extent permitted by applicable law, an amount that is greater than the amountand not a violation of Sections 280G, on a net after tax basis409A, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application 4999 of the Code, Executive will be entitled to elect the order in which payments will be reduced. If Executive electing the order in which payments will be reduced would result in violation of Section 409A or loss of the benefit of reduction under Sections 280G or 4999, payments will be reduced in the following order (1) severance payment based on multiple of Base Salary and/or Cash Bonus or Target Cash Bonus; (2) other cash payments; (3) any pro-rated Cash Bonus paid as severance; (4) acceleration of vesting of stock options with an exercise price that exceeds the then-fair market value of stock subject to the option, provided such options are not permitted to be valued under Treas. Reg. Section l .280G- l Q/A - 24(c); (5) any equity awards accelerated or otherwise valued at full value, provided such equity awards are not permitted to be valued under Treas, Reg. Section l.280G-l Q/A - 24(c); (6) acceleration of vesting of stock options with an exercise price that exceeds the then-fair market value of stock subject to the option, provided such options are permitted to be valued under Treas. Reg. Section l. 280G- l Q/A - 24(c); (7) acceleration of vesting of all other stock options and other equity awards; and (8) within any category, reductions will be from the last due payment to the first. All determinations regarding the application of this Section 10 shall be made by an accounting firm or consulting group with nationally recognized standing and substantial expertise and experience in performing calculations regarding the applicability of Section 280G of the Code retained by Employer prior to the date of the applicable legal authoritychange in control and reasonably acceptable to Executive (the "280G Firm"). The Company 280G Firm will be directed to submit its determination and Employee shall furnish detailed supporting calculations to both Executive and Employer within thirty (30) days after notification from either Employer or Executive that Executive may receive Payments which may be "parachute payments" within the Accountants meaning of Section 280G (or such information earlier or later date as Employer and Executive may agree). Executive and Employer will each provide the 280G Firm access to and copies of any books, records, and documents in their possession as may be reasonably requested by the Accountants may reasonably require in order to make a determination under this Section 6(g), 280G Firm and otherwise cooperate with the Company shall bear the cost of all fees the Accountants charge 280G Firm in connection with any the preparation and issuance of the determinations and calculations contemplated by this letter agreement. The fees and expenses of the 280G Firm for its services in connection with the determinations and calculations contemplated by this Section 6(g)10 will be borne by Employer. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne by Employer.
Appears in 2 contracts
Samples: Executive Employment Agreement (Histogen Inc.), Executive Employment Agreement (Histogen Inc.)
Section 280G. In (a) Notwithstanding anything to the event contrary herein, if it shall be determined that any payments, distributions, benefits payment or entitlements of benefit hereunder or under any type payable to Employee other plan or agreement or otherwise (collectively “CIC BenefitsPayments”) (i) would constitute an “excess parachute paymentspayment” to the Executive within the meaning of Section 280G of the Code, and (ii) but for this paragraph thus would not be deductible under Section 280G of the Code and would be subject to the excise tax imposed by Section 4999 of the Code or any similar tax (the “Excise 280G Tax”), then Employee’s CIC Benefits and if and only if the Executive would be in a better after-tax position by reducing the Payments, the amounts payable hereunder shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no extent necessary to eliminate any Payments or portion of such benefits the Payments from being non-deductible under Section 280G(b)(1) of the Code and thereby not subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected excise tax imposed by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code). In such case, an amount the Payments shall be reduced so that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt total aggregate value of the Reduced Amount. Unless Payments do not exceed 2.99 times the total value of the Executive's average annualized compensation for the preceding five years.
(b) The Company agrees that it will use commercially reasonable efforts to obtain the approval, in the manner and by such number of stockholders of the Company, as is required under the terms of Section 270G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G inapplicable to any and all benefits provided to the Executive pursuant to this Agreement as well as pursuant to any other compensation agreements between the Company and Employee otherwise agree in writing, any determination required the Executive.
(c) Any determinations to be made under this Section 6(g) Paragraph 6 shall be made in writing in good faith by the Accountants. In Company's independent public accountants (the event of a reduction of benefits hereunder“Accounting Firm”), benefits which firm shall provide its determinations and any supporting calculations both to the Company and to the Executive, and shall be reduced by first reducing or eliminating binding upon the portion Company and the Executive. All fees and expenses of the CIC Benefits that are payable Accounting Firm in cash under Section 6(d)(ii) and 6(d)(iii) and then performing the determinations referred to in this paragraph shall be borne solely by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company.
Appears in 2 contracts
Samples: Change in Control Agreement (Tranzyme Inc), Change in Control Agreement (Tranzyme Inc)
Section 280G. In Notwithstanding anything to the event that contrary in this Agreement, if Executive is a “disqualified individual” (as defined in section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any paymentsother payments and benefits which Executive has the right to receive from the Company or any of its Affiliates, distributions, benefits or entitlements of any type payable to Employee (“CIC Benefits”) (i) would constitute a “parachute paymentspayment” within the meaning of Section 280G (as defined in section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (iia) reduced (but for this paragraph would not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and its affiliates will be one dollar ($1.00) less than three times Executive’s “base amount” (as defined in section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Section section 4999 of the Code or (b) paid in full, whichever produces the “Excise Tax”better net after-tax position to Executive (taking into account any applicable excise tax under section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, then Employee’s CIC Benefits if applicable, shall be reduced made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such lesser amount (the “Reduced Amount”) payment or benefit that would result be made first in no portion time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of such the payments and benefits being subject to the Excise Tax; provided that such amounts hereunder is necessary shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected made by the Company prior in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Executive’s base amount, then Executive shall immediately repay such excess to a Change of Control (the “Accountants”)Company upon notification that an overpayment has been made. Nothing in this Section 16 shall require the Company to be responsible for, that without such reduction Employee would be entitled to receive and retainor have any liability or obligation with respect to, on a net after Executive’s excise tax basis (including, without limitation, any excise taxes payable liabilities under Section section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).
Appears in 2 contracts
Samples: Employment Agreement (Power & Digital Infrastructure Acquisition Corp.), Employment Agreement (Power & Digital Infrastructure Acquisition Corp.)
Section 280G. In Notwithstanding anything to the event contrary contained in this Agreement, to the extent that any paymentsof the payments and benefits provided for under this Agreement or any other agreement or arrangement between the Employee and the Bio-Techne (collectively, distributions, benefits or entitlements of any type payable to Employee (the “CIC BenefitsPayments”) (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the CodeCode and, and (ii) but for this paragraph Section 7.14, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits the Payments shall be reduced payable either (i) in full or (ii) as to such lesser amount (the “Reduced Amount”) that which would result in no portion of such benefits Payments being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable 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 Employee’s receipt on an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of economic benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company Employee and Employee Bio-Techne otherwise agree in writing, any determination required under this Section 6(g) 7.13 shall be made in writing in good faith by Bio-Techne’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose reasonable determination shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) conclusive and 6(d)(iii) binding upon Employee and then by reducing or eliminating any amounts that are payable with respect to longBio-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Techne for all purposes. For purposes of making the calculations required by this Section 6(g)7.13, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Sections 280G and 4999 of the Code, . Employee and other applicable legal authority. The Company and Employee Bio-Techne shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g)7.13. The Accountants will provide its calculations, and together with detailed supporting documentation, to the Company shall bear the cost of all fees the Accountants charge and Employee as soon as practicable following its engagement. If a reduction in connection with any calculations contemplated Payments is required by this provision and none of the Payments constitute “non-qualified deferred compensation” subject to Code Section 6(g)409A, then the reduction will occur in the manner Employee elects in writing prior to the date of payment. If any Payment constitutes “non-qualified deferred compensation” subject to Code Section 409A or if Employee fails to elect an order, then the Payments to be reduced will be determined in a manner which has the least economic cost to Employee and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to Employee, until the reduction is achieved.
Appears in 2 contracts
Samples: Executive Employment Agreement (BIO-TECHNE Corp), Executive Employment Agreement (BIO-TECHNE Corp)
Section 280G. In (a) If any of the event that payments or benefits received or to be received by the Executive (including, without limitation, any paymentspayment or benefits received in connection with a Change in Control or the termination of the Executive’s employment, distributionswhether pursuant to the terms of this Agreement or any other plan, benefits arrangement or entitlements of any type payable to Employee (“CIC Benefits”agreement, or otherwise) (iall such payments collectively refer to herein as the "280G Payments") 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 paragraph would will be subject to the excise tax imposed by under Section 4999 of the Code (the “"Excise Tax”"), then Employee’s CIC Benefits the Company shall pay to the Executive, no later than the time such Excise Tax is required to be paid by the Executive or withheld by the Company, an additional amount equal to the sum of the Excise Tax payable by the Executive, plus the amount necessary to put the Executive in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest applicable rates on such 280G Payments and on any payments under this Section 7.(a) or otherwise) as if no Excise Tax had been imposed.
(b) All calculations and determinations under this Section 7 shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized made by an independent accounting firm selected or independent tax counsel appointed by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would "Tax Counsel") whose determination shall be entitled to receive conclusive and retain, binding on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g7(b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application applicability of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee the Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(g7(b), and the . The Company shall bear all costs of the cost of all fees the Accountants charge Tax Counsel reasonably incurred in connection with any calculations contemplated by the performance of its duties under this Section 6(g7(b).
Appears in 2 contracts
Samples: Employment Agreement (BSD Medical Corp), Employment Agreement (BSD Medical Corp)
Section 280G. In the event that any payments, distributions, payments or benefits or entitlements of any type otherwise payable to Employee Executive (“CIC Benefits”) (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 paragraph Section 8, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits shall such payments and benefits will be reduced either (i) delivered in full, or (ii) delivered as to such lesser amount (the “Reduced Amount”) extent that would result in no portion of such payments and benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the excise tax imposed by Section 4999 of the Code (and any equivalent state or local excise taxes), results in the receipt by Executive on an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of benefits, notwithstanding that all or some portion of such payments and benefits may be taxable under Section 4999 of the Code. Unless the Company and Employee Parties otherwise agree in writing, any determination required under this Section 6(g) shall 8 will be made in writing in good faith by a nationally-recognized accounting firm selected jointly by Employer and Executive (the “Accountants. In the event of a reduction of benefits hereunder”), benefits shall whose determination will be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) conclusive and 6(d)(iii) binding upon Executive and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Employer for all purposes. For purposes of making the calculations required by this Section 6(g)8, the 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, and other applicable legal authority. The Company and Employee shall Parties agree to furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the Company shall provision. Employer will bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 6(g)provision.
Appears in 2 contracts
Samples: Employment Agreement (First Busey Corp /Nv/), Employment Agreement (First Busey Corp /Nv/)
Section 280G. (i) In the event that any payments, distributions, benefits or entitlements of any type payable to Employee (“CIC Benefits”) (i) constitute the severance and other benefits provided for in this Agreement or otherwise payable or provided to Executive but determined without regard to any additional payments required by this Section 6(h) (collectively, the “parachute payments” within the meaning of Section 280G of the Code, and (iiPayment”) but for this paragraph would be subject to the excise tax imposed by Section 4999 of the Code and the regulations issued thereunder (the “Excise Tax”) and (ii) the value of the Payment (as determined in accordance with Section 280G of the Code and the regulations issued thereunder (collectively referred to as “Section 280G”)) exceeds three (3) times Executive’s “base amount” (within the meaning of Section 280G) (such three times amount referred to as Executive’s “280G Threshold”) by the greater of Fifty Thousand Dollars ($50,000) or ten percent (10%) of Executive’s 280G Threshold, then EmployeeExecutive shall be paid an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive after deduction of the Excise Tax, and any federal, state and local income and employment tax and excise tax imposed upon the Gross-Up Payment shall be equal to the Payment. In the event that the value of the Payment (as determined in accordance with Section 280G) does not exceed Executive’s CIC Benefits 280G Threshold by the greater of Fifty Thousand Dollars ($50,000) or ten percent (10%) of Executive’s 280G Threshold, the Payment shall be reduced to such lesser an amount (the “Reduced Amount”) equal to Executive’s 280G Threshold less $1 so that would result in no portion of such benefits being the Payment shall be subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control .
(the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. ii) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 6(g6(h) shall will be made in writing in good faith by a national accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the “Accountants. In ”), whose determination will be conclusive and binding upon the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating Executive and the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g), 6(h) the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g6(h). Any reduction in payments and/or benefits required by this Section 6(h) 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) reduction of other benefits paid or payable to Executive. Notwithstanding anything to the contrary herein, any such reduction shall be structured in a manner intended to comply with Section 409A. 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. The Company shall bear the cost of all fees costs that the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 6(g6(h).
Appears in 2 contracts
Samples: Employment Agreement (Imprimis Pharmaceuticals, Inc.), Employment Agreement (Imprimis Pharmaceuticals, Inc.)
Section 280G. In If any payment or benefit Executive will or may receive from the event that any payments, distributions, benefits Company under this Agreement or entitlements of any type payable to Employee otherwise would (“CIC Benefits”) (ia) constitute a “parachute paymentspayment” within the meaning of Section 280G of the CodeCode (a “280G Payment”) and, and (iib) but for this paragraph would sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employeethe Company shall cause to be determined, before any amounts of the 280G Payment are paid to Executive, which of the following two amounts would maximize Executive’s CIC Benefits shall be reduced to such lesser after-tax proceeds: (i) payment in full of the entire amount of the 280G Payment (a “Full Payment”), or (ii) payment of only a part of the 280G Payment, so that Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced AmountPayment”) ), whichever amount results in Executive’s receipt, on an after-tax basis, of the greater amount of the 280G Payment notwithstanding that would result in no all or some portion of such benefits being the 280G Payment may be subject to the Excise Tax; provided that such amounts shall not be so reduced if . For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company determinesshall cause to be taken into account all applicable federal, based on state and local income and employment taxes and the advice Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, (A) the 280G 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 280G Payment, and (B) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit for Executive, as determined in the Company’s reasonable good faith discretion. All determinations required to be made under this Section 9(k), including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of any such reduction and the assumptions to be utilized in arriving at such determinations not expressly provided for herein, shall be made by an independent, nationally recognized accounting firm selected or compensation consulting engaged by the Company prior and reasonably acceptable to a Change of Control Executive (the “AccountantsDetermination Firm”)) which shall provide detailed supporting calculations both to the Company and Executive. All reasonable fees and expenses of the Determination Firm shall be borne solely by the Company. Any determination by the Determination Firm shall be binding upon the Company and Executive, that without such reduction Employee would absent manifest error. For purposes of determining whether and the extent to which the payments will be entitled subject to receive and retain, on the Excise Tax: (i) no portion of the payments shall be taken into account which does not constitute a net after tax basis “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including, without limitation, any excise taxes payable under by reason of Section 4999 280G(b)(4)(A) of the Code)) and (ii) in calculating the Excise Tax, an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt no portion of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) such payments shall be made in writing in good faith by taken into account which constitutes reasonable compensation for services actually rendered, within the Accountants. In the event meaning of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii280G(b)(4)(B) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish in excess of the “base amount” (as set forth in Section 280G(b)(3) of the Code) that is allocable to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)reasonable compensation.
Appears in 2 contracts
Samples: Employment Agreement (Vivint Smart Home, Inc.), Employment Agreement (Vivint Smart Home, Inc.)
Section 280G. In (a) Payments under this Agreement shall be made without regard to whether the event that deductibility of such payments (or any payments, distributions, benefits other payments to or entitlements for the benefit of any type payable to Employee the Executive) (“CIC BenefitsChange of Control Payments”) (i) constitute “parachute payments” within the meaning of would be limited or precluded by Section 280G of the Code, and without regard to whether such payments (iior any other payments) but for this paragraph would be subject the Executive to the federal excise tax imposed by Section 4999 of the Code (the levied on certain “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable excess parachute payments” under Section 4999 of the Code; provided, that if the total of all payments to or for the benefit of the Executive (whether under this Agreement or otherwise), an amount that is greater than after reduction for all state and federal taxes (including the amounttax described in Section 4999 of the Code, on a net after tax basisif applicable) with respect to such payments (“Executive’s Total After-Tax Payments”), that Employee would be entitled to retain upon receipt increased by the limitation or elimination of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required payment under this Agreement, amounts payable under this Agreement shall be reduced to the extent, and only to the extent, necessary to maximize the Executive’s total after-tax payments (the “Required Reduction Amount”).
(b) The determination as to whether and to what extent payments under this Agreement are required to be reduced in accordance with Section 6(g23(a) shall be made in writing in good faith at the Company’s expense by the AccountantsCompany’s independent accounting firm immediately prior to the Change of Control (provided, however, that if the independent accounting firm is precluded from performing such services, an independent accountant mutually agreeable to the parties shall be used) (the “Outside Firm”). Such Outside Firm shall, in making its determination, consider available exemptions, including to what extent (if any) such Change of Control Payments or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Executive’s obligations under Section 10 and any other covenants to refrain from performing services.
(c) In the event of a any mistaken underpayment or overpayment under this Section 23, as determined by the Outside Firm, the amount of such underpayment or overpayment shall forthwith be paid to the Executive or refunded to the Company, as the case may be, with interest at 120% of the applicable federal rate provided for in Section 7872(f)(2) of the Code. Any reduction of benefits hereunder, benefits in payments required by this Section 23 shall be reduced by first reducing applied in the following order: (i) stock options or eliminating stock appreciation rights whose exercise price exceeds the portion fair market value of the CIC Benefits optioned stock; (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash under Section 6(d)(iiFull Credit Payments that are then taxable, (iv) non-cash Full Credit Payments that are not then taxable (v) Partial Credit Payments (as defined below) and 6(d)(iii(vi) and then non-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first payment or benefit to be reduced (with reductions made pro-rata in the event payments or benefits are owed at the same time). “Full Credit Payment” shall mean a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, that if reduced in value by reducing one dollar reduces the amount of the parachute payment (as defined in Section 280G of the Code) by one dollar, determined as if such payment, distribution or eliminating benefit had been paid or distributed on the date of the event triggering the excise tax. “Partial Credit Payment” shall mean any amounts payment, distribution or benefit that are payable is not a Full Credit Payment. In no event shall Executive have any discretion with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes the ordering of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)payment reductions.
Appears in 2 contracts
Samples: Termination and Change of Control Agreement (Ametek Inc/), Termination and Change of Control Agreement (Ametek Inc/)
Section 280G. In Prior to the event Closing Date, for each “disqualified individual” (as defined in Section 280G(c) of the Code) who signs the written waiver described below the Company shall submit to a stockholder vote, in a manner that satisfies the stockholder vote requirements under Section 280G(b)(5)(B) of the Code and regulations promulgated thereunder (a “Stockholder Vote”), the right of such disqualified individual to receive, subject to the Buyer’s timely disclosure of the Buyer Arrangements as provided below, any payments, distributions, benefits and all payments (or entitlements other benefits) contingent on the consummation of any type payable to Employee the transactions contemplated by this Agreement (“CIC Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G 280G(b)(2)(A)(i) of the Code) to the extent necessary so that no payment received by, or benefit provided to, such “disqualified individual” would be a “parachute payment” under Section 280G(b) of the Code. The Company shall: (a) at least seven (7) days prior to providing: (i) the applicable disqualified individuals with any required waivers described below and (ii) but for this paragraph would be subject the applicable stockholders with any materials necessary to comply with the Stockholder Vote, provide a draft of the applicable materials (as well as any related calculations underlying such materials) to Buyer and incorporate into such materials any reasonable comments that are timely provided by Buyer; and (b) use commercially reasonable measures to obtain any required waiver from each disqualified individual at least one day prior to conducting the Stockholder Vote. Prior to the excise tax imposed Closing, the Company shall provide Buyer and its counsel with copies of all documents executed by Section 4999 the stockholders and disqualified individuals in connection with the Stockholder Vote. Not less than three (3) days after the Company has provided a draft of the Code (applicable materials necessary to comply with the “Excise Tax”)Stockholder Vote to Buyer, then EmployeeBuyer shall disclose to Company in writing all material terms including dollar values regarding each Buyer Arrangement. If Buyer fails to comply with the immediately preceding sentence, the Company may solicit the Stockholder Vote without including or disclosing the Buyer Arrangements, the Company’s CIC Benefits shall be reduced failure to such lesser amount (include or disclose the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts Buyer Arrangements shall not be so reduced if the Company determines, based on the advice a violation of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountthis paragraph. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).LEGAL_US_E # 161486834.17
Appears in 1 contract
Samples: Stock Purchase Agreement (Sensata Technologies Holding PLC)
Section 280G. In the event that any payments, distributions, benefits payment or entitlements of any type payable benefit received or to Employee be received by you pursuant to this Agreement (“CIC BenefitsPayments”) would (ia) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, Code and (iib) but for this paragraph would Paragraph 8, be subject to the excise tax imposed by Section 4999 of the Code Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (the “Excise Tax”), then Employee’s CIC Benefits such Payments shall be reduced either (i) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (ii) provided as to such lesser extent that would result in the Payments being $1.00 less than the amount at which any portion of the Payments would be subject to the Excise Tax (the “Reduced Amount”) that would result in no portion ), whichever of such benefits being subject to the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis Tax (including, without limitation, any excise taxes payable under Section 4999 of the Codeinterest or penalties on such taxes), an amount that is greater than results in the amountreceipt by you, on a net after an after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. Unless the Company and Employee you otherwise agree in writing, any determination required under this Section 6(g) Paragraph 8 shall be made in writing in good faith by independent tax counsel designated by the Accountants. In the event of a reduction of benefits hereunderCompany and reasonably acceptable to you (“Independent Tax Counsel”), benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding upon you and the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by under this Section 6(g)Paragraph 8, the Accountants Independent Tax Counsel 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, and other applicable legal authority; provided that Independent Tax Counsel shall assume that you pay all taxes at the highest marginal rate. The Company and Employee you shall furnish to the Accountants Independent Tax Counsel such information and documents as the Accountants Independent Tax Counsel may reasonably require request in order to make a determination under this Section 6(g), and the Paragraph 8. The Company shall bear the cost of all fees the Accountants charge costs that Independent Tax Counsel may reasonably incur in connection with any calculations contemplated by this Paragraph 8. In the event that Paragraph 7 above applies, then based on the information provided to you and the Company by Independent Tax Counsel, the cutback described hereunder will apply as to compensation not subject to Section 6(g)409A of the Code prior to compensation subject to Section 409A of the Code and will otherwise apply on a reverse chronological basis from payments latest in time.
Appears in 1 contract
Samples: Transition and Resignation Agreement (Aeglea BioTherapeutics, Inc.)
Section 280G. In If required to avoid the event that imposition of Taxes under Section 4999 of the Code with respect to any paymentspayment or benefit in connection with the transactions contemplated by this Agreement, distributionsconcurrent with such written notice, benefits or entitlements of any type payable the Companies shall obtain and deliver to Employee (“CIC Benefits”) (i) constitute Buyer waivers, duly executed by each Person who might receive a “parachute paymentspayment” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), pursuant to which each such Person shall agree to waive any and all right or entitlement to such payment to the extent the value thereof exceeds three times minus $1 such Person’s “base amount” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), as determined in accordance with Section 280G of the Code and the regulations promulgated thereunder (such payments, the “Excess Parachute Payments”) and deliver to their respective stockholders a disclosure statement intended to satisfy the stockholder approval requirements of Section 280G(b)(5)(B) of the Code, soliciting the consent of its stockholders with respect to all the Excess Parachute Payments. Buyer shall provide the Companies with all relevant terms of any employment contracts or other arrangements that will be entered with the “disqualified individuals” (as defined in Section 280G(c) of the Code) of the Companies and their Subsidiaries on or around the Closing Date that could result in payments and other terms (iiincluding, rights to severances or signing bonuses) but for that need to be approved (or disclosed) to ensure the disclosure and consent under the previous sentence is valid. The Companies agree that in the absence of such stockholder approval and provided that recipients of “parachute payments” execute waivers as provided herein, no Excess Parachute Payments shall be made. The form and substance of all stockholder approval documents contemplated by this paragraph would Section 4.07, including the waivers, shall be subject to the excise tax imposed by Section 4999 prior review and reasonable approval of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Buyer.
Appears in 1 contract
Section 280G. (a) In the event that any payments, distributions, benefits the Company undergoes a “change in ownership or entitlements of any type payable to Employee control” (“CIC Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the CodeCode and the regulations and guidance promulgated thereunder (“Section 280G”)) and all, and or any portion, of the payments provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive from the Company (collectively, the “Total Payments”), could constitute an “excess parachute payment” within the meaning of Section 280G, then the Executive shall be entitled to receive (i) an amount limited (to the minimum extent necessary) so that no portion of the Total Payments shall be non-deductible for US federal income taxes by reason of Section 280G (the “Limited Amount”), or (ii) but for this paragraph would be subject if the amount of the Total Payments (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the Code (the “Excise Tax”) and the amount of all other applicable federal, state and local taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by the amount of all taxes applicable thereto (with income taxes all computed at the highest marginal rate), then the amount of the Total Payments otherwise payable without regard to clause (i). If it is determined that the Limited Amount will maximize the Employee’s CIC Benefits 's after-tax proceeds, the Total Payments shall be reduced to equal the Limited Amount in the following order: (i) first, by reducing cash severance payments that are exempt from Section 409A, (ii) second, by reducing other payments and benefits that are exempt from Section 409A and to which Q&A 24(c) of Section l.280G-1 of the Treasury Regulations does not apply, (iii) third, by reducing all remaining payments and benefits that are exempt from Section 409A and (iv) finally, by reducing payments and benefits that are subject to Section 409A, in each case, with all such lesser amount reductions done on a pro rata basis.
(b) All determinations made pursuant this Section 14 will be made prior to the “Reduced Amount”) that would result change in no portion ownership or control” at the Company's or its Affiliates' expense by an accounting firm or consulting group selected by or on behalf of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on with experience in performing calculations regarding the advice applicability of a nationally recognized accounting firm Section 280G and Section 4999 of the Code selected by the Company prior to a Change of Control for such purpose (the “AccountantsIndependent Advisors”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making such determinations, no portion of the calculations required Total Payments shall be taken into account which, in the opinion of the Company and its legal advisors, (y) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by this reason of Section 6(g)280G(b)(4)(A) of the Code) or (z) constitutes reasonable compensation for services actually rendered, within the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. In the event it is later determined that (A) a greater reduction in the Total Payments should have been made to implement the objective and other applicable legal authority. The Company and Employee intent of this Section 14, the excess amount shall furnish be returned immediately by the Executive to the Accountants such information Company or (B) a lesser reduction in the Total Payments should have been made to implement the objective and documents as the Accountants may reasonably require in order to make a determination under intent of this Section 6(g)14, and the Company additional amount shall bear be paid immediately by the cost Company, or any Affiliate of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company, as applicable, to the Executive.
Appears in 1 contract
Section 280G. In (a) If any payment or benefit (including payments and benefits pursuant to this Agreement) that Executive would receive in connection with a Change in Control from the event that any payments, distributions, benefits Company or entitlements of any type payable to Employee otherwise (“CIC BenefitsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, and (ii) but for this paragraph the net after-tax benefit that Executive would be subject receive by reducing the Transaction Payments to three times the excise tax imposed by “base amount,” as defined in Section 4999 280G(b)(3) of the Code Code, (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced AmountParachute Threshold”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after after-tax basis, that Employee benefits Executive would be entitled to retain upon receipt receive if the full amount of the Reduced Amount. Transaction Payments were paid to Executive, then the Transaction Payments payable to Executive shall be reduced (but not below zero) so that the Transaction Payments due to Executive do not exceed the amount of the Parachute Threshold, reducing first any Transaction Payments under Section 5.1(e) hereof.
(b) Unless Executive and the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) section shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunderXxxx Xxxxx LLP (“Xxxx Xxxxx”), benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g), the Accountants Xxxx Xxxxx 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, and other applicable legal authority. The Xxxx Xxxxx shall provide detailed supporting calculations to the Company and Employee Executive as requested by the Company or Executive at least thirty (30) days prior to the date the excise tax imposed by Section 4999 of the Code (including any interest, penalties or additions to tax relating thereto) is required to be paid by Executive or withheld by the Company. Executive and the Company shall furnish to the Accountants Xxxx Xxxxx such information and documents as the Accountants Xxxx Xxxxx may reasonably require request in order to make a determination under this Section 6(g), and the section. The Company shall bear the cost of all fees the Accountants charge costs Xxxx Xxxxx may reasonably incur in connection with any calculations contemplated by this section as well as any costs incurred by Executive with Xxxx Xxxxx for tax planning under Section 6(g)280G and 4999 of the Code.
(c) The Company hereby agrees that, for purposes of determining whether any Transaction Payment would be subject to the excise tax under Section 4999 of the Code, the non-compete set forth in Section 8.5 shall be treated as an agreement for the performance of personal services. The Company hereby agrees to indemnify, defend, and hold harmless Executive from and against any adverse impact, tax, penalty, or excise tax resulting from the Company or Xxxx Xxxxx’x attribution of a value to the non-compete set forth in Section 8.5 that is less than the total compensation amount that is disclosed under Item 402(c) of Securities and Exchange Commission Regulation S-K in the year prior to the year of the event that triggers the Excise Tax, to the extent the use of such lesser amount results in a larger Excise Tax than Executive would have been subject to had the Company or Xxxx Xxxxx attributed a value to the non-compete set forth in Section 8.5 that is at least equal to the total compensation amount disclosed under Item 402(c) of the Securities and Exchange Commission Regulation S-K for such year.
Appears in 1 contract
Section 280G. In If any of the event that payments or benefits received or to be received by the Executive (including, without limitation, any paymentspayment Or benefits received in connection with a Change in Control or the Executive's termination of employment, distributionswhether pursuant to the terms of this Agreement or any other plan, benefits arrangement or entitlements of any type payable to Employee (“CIC Benefits”agreement, or otherwise) (iall such payments collectively referred to herein as the "280G Payments") constitute “"parachute payments” " within the meaning of Section 280G of the CodeCode and would, and (ii) but for this paragraph would Section 5.9, be subject to the excise tax imposed by under Section 4999 of the Code (the “"Excise Tax”"), then Employee’s CIC Benefits such 280G Payments shall be reduced to such lesser amount in a manner determined by the Company (by the “Reduced Amount”minimum possible amounts) that would result in is consistent with the requirements of Section 409A until no portion of such benefits being amount payable to the Executive will be subject to the Excise Tax; provided that such . if two economically equivalent amounts are subject to reduction but are payable at different times, the amounts shall be reduced (but not below zero) on a pro rata basis.
(a) All calculations and determinations under this Section 5.9 shall be so reduced if the Company determines, based on the advice of a nationally recognized made by an independent accounting firm selected or independent tax counsel appointed by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would "Tax Counsel") whose determinations shall be entitled to receive conclusive and retain, binding on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g)5.9, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee the Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(g), and the 5.9. The Company shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 6(g)its services.
Appears in 1 contract
Section 280G. In the event that any payments, distributions, payment or benefits received or entitlements of any type payable to Employee be received by the Executive pursuant to this Agreement (“CIC Benefits”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this paragraph subsection, would be subject to the excise tax imposed by Section 4999 of the Code Code, or any comparable successor provisions (the “Excise Tax”), then Employee’s CIC either (A) the Benefits provided to the Executive shall be reduced reduced, but only by the minimum required to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax or (B) or the Benefits shall be paid in full and the Executive shall pay the Excise Tax; provided that such amounts shall not be so reduced if , whichever alternative is more beneficial to the Company determines, based Executive on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 6(g) subsection shall be made in writing in good faith by an accountant selected by the Accountants. In mutual agreement of Executive and the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating Company (the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind“Accountant”). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to bear all costs the Accountants such information and documents as the Accountants Accountant may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge incur in connection with any calculations contemplated by this subsection. To the extent applicable, the reduction in Benefits contemplated by this paragraph shall be implemented by reducing the Benefits in the following order: (i) any cash severance or other cash amount payable to the Executive hereunder, and (ii) any continued benefit valued as a “parachute payment” for purposes of Section 6(g)280G of the Code. In addition, the Company shall take commercially reasonable efforts to present the Benefits to its equity holders to exempt such Benefits from the Excise Tax, if such a cure is available through a vote of equity holders under Section 280G of the Code.
Appears in 1 contract
Samples: Executive Employment Agreement (21st Century Oncology Holdings, Inc.)
Section 280G. In a. If any of the event that payments or benefits received or to be received by the Executive (including, without limitation, any paymentspayment or benefits received in connection with a Change in Control or the Executive’s termination of employment, distributionswhether pursuant to the terms of this Agreement or any other plan, benefits arrangement, or entitlements of any type payable to Employee (“CIC Benefits”agreement, or otherwise) (iall such payments collectively referred to herein as the "280G Payments") constitute “"parachute payments” " within the meaning of Section 280G of the CodeCode and would, and (ii) but for this paragraph would Error! Bookmark not defined.(a), be subject to the excise tax imposed by under Section 4999 of the Code (the “"Excise Tax”"), then Employee’s CIC Benefits such 280G Payments shall be reduced to such lesser amount in a manner determined by the Company (by the “Reduced Amount”minimum possible amounts) that would result in is consistent with the requirements of Section 409A until no portion of such benefits being amount payable to the Executive will be subject to the Excise Tax; provided that such . If two economically equivalent amounts are subject to reduction but are payable at different times, the amounts shall be reduced (but not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, below zero) on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax pro rata basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company .
b. All calculations and Employee otherwise agree in writing, any determination required determinations under this Section 6(gError! Bookmark not defined.(a) shall be made in writing in good faith by an independent accounting firm or independent tax counsel appointed by the Accountants. In Company (the event of a reduction of benefits hereunder, benefits "Tax Counsel") whose determinations shall be reduced by first reducing or eliminating conclusive and binding on the portion of Company and the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(gError! Bookmark not defined.(a), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee the Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(gError! Bookmark not defined.(a), and the . The Company shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 6(g)its services.
Appears in 1 contract
Section 280G. In (a) Anything in this Agreement to the contrary notwithstanding, in the event that any payments, distributions, benefits or entitlements the Accounting Firm shall determine that receipt of any type payable all Payments would subject the Executive to Employee (“CIC Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an the Accounting Firm shall determine whether some amount of the Agreement Payments meets the definition of “Reduced Amount.” If the Accounting Firm determines that there is greater than a Reduced Amount, then the amount, on a net after tax basis, aggregate Agreement Payments shall be reduced to such Reduced Amount.
(b) If the Accounting Firm determines that Employee would the aggregate Agreement Payments should be entitled reduced to retain upon receipt of the Reduced Amount. Unless , the Company shall promptly give the Executive notice to that effect and Employee otherwise agree a copy of the detailed calculation thereof, and the Executive may then elect, in writinghis sole discretion, any determination required under this Section 6(g) which and how much of the Agreement Payments shall be made in writing in good faith by eliminated or reduced (as long as after such election the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion present value of the CIC Benefits aggregate Agreement Payments equals the Reduced Amount); provided, that, the Executive shall not be permitted to elect to reduce any Agreement Payment that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For constitutes “nonqualified deferred compensation” for purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application 409A of the Code, and other applicable legal authorityshall advise the Company in writing of his election within 10 days of his receipt of notice. The If no such election is made by the Executive within such 10-day period, the Company shall reduce the Agreement Payments in the following order: (x) Section 4(a)(i)(A), (y) Section 4(a)(i)(B), and Employee shall furnish to (z) Section 4(a)(ii). All determinations made by the Accountants such information and documents as the Accountants may reasonably require in order to make a determination Accounting Firm under this Section 6(g)7 shall be binding upon the Company and the Executive and shall be made within 60 days of the Executive’s Date of Termination. In connection with making determinations under this Section 7, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change in Control, including any non-competition provisions that may apply to the Executive, and the Company shall bear cooperate in the cost valuation of all any such services, including any non-competition provisions.
(c) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement which should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts which will not have been paid or distributed by the Company to or for the benefit of the Executive pursuant of this Agreement could have been so paid or distributed (each, an “Underpayment”), in each case, consistent with the calculations of the Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of the Executive shall be repaid by the Executive to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no such repayment shall be required if and to the extent such deemed repayment would not either reduce the amount on which the Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.
(d) All fees and expenses of the Accountants charge Accounting Firm in connection with any calculations contemplated by implementing the provisions of this Section 6(g).7 shall be borne by the Company:
Appears in 1 contract
Samples: Employment Agreement (Unum Group)
Section 280G. In (A) If any payment or benefit the event that Executive will or may receive from the Company or any payments, distributions, benefits of its affiliates under this Agreement or entitlements of any type payable to Employee otherwise (a “CIC Benefits280G Payment”) would (ix) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, and the rules and regulations thereunder (the “Code”), and (iiy) but for this paragraph would sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits each such 280G Payment (collectively, the “Payments”) shall be reduced to such lesser amount (the extent necessary for the Payments to equal, in the aggregate, the Reduced Amount. The “Reduced Amount”” shall be either (1) the largest portion of the Payments that would result in no Excise Tax on the Payments (after reduction), or (2) the total Payments, whichever amount (i.e., the amount determined by clause (1) or by clause (2)), after taking into account all applicable federal, state, and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of such benefits being the Payments may be subject to the Excise Tax; provided that such amounts . If a reduction in the Payments is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (1) of the preceding sentence, the reduction shall not be so reduced if occur in the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control manner (the “AccountantsReduction Method”) that results in the greatest economic benefit for the Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).
Appears in 1 contract
Samples: Executive Employment Agreement (Hennessy Capital Acquisition Corp IV)
Section 280G. In Notwithstanding anything to the event contrary contained in this Agreement, to the extent that any paymentsof the payments and benefits provided for under this Agreement or any other agreement or arrangement between the Executive and the Company (collectively, distributions, benefits or entitlements of any type payable to Employee (the “CIC BenefitsPayments”) (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph Section 5(b), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits the Payments shall be reduced payable either (i) in full or (ii) as to such lesser amount (the “Reduced Amount”) that which would result in no portion of such benefits Payments being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable 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 Executive’s receipt on an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of economic benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Executive and the Company and Employee otherwise agree in writing, any determination required under this Section 6(g5(b) shall be made in writing in good faith by the Company’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose reasonable determination shall be reduced by first reducing or eliminating conclusive and binding upon the portion of Executive and the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g5(b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Sections 280G and 4999 of the Code, and other applicable legal authority. The Executive and the Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g5(b). If this Section 5(b) is applied to reduce an amount payable to the Executive, and the Internal Revenue Service successfully asserts that, despite the reduction, the Executive has nonetheless received payments which are in excess of the maximum amount that could have been paid to him without being subjected to any excise tax, then, unless it would be unlawful for the Company shall bear make such a loan or similar extension of credit to the cost Executive, the Executive may repay such excess amount to the Company though such amount constitutes a loan to you made at the date of all fees payment of such excess amount, bearing interest at 120% of the Accountants charge applicable federal rate (as determined under section 1274(d) of the Code in connection with any calculations contemplated by this Section 6(grespect of such loan).
Appears in 1 contract
Samples: Severance Benefits Agreement (Nile Therapeutics, Inc.)
Section 280G. In Notwithstanding anything to the event contrary contained in this Agreement, to the extent that any paymentsof the payments and benefits provided for under this Agreement or any other agreement or arrangement between Executive and the Company (collectively, distributions, benefits or entitlements of any type payable to Employee (“CIC Benefits”) (ithe "Payments") constitute “a "parachute payments” payment" within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph Section 11(b), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits the Payments shall be reduced payable either (i) in full or (ii) as to such lesser amount (the “Reduced Amount”) that which would result in no portion of such benefits Payments being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable 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 Executive’s receipt on an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of economic benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Executive and the Company and Employee otherwise agree in writing, any determination required under this Section 6(g11(b) shall be made in writing in good faith by the Company’s independent public accountants (the "Accountants. In the event of a reduction of benefits hereunder"), benefits whose reasonable determination shall be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g11(b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Sections 280G and 4999 of the Code, . Executive and other applicable legal authority. The the Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g11(b). If a reduction in Payments is necessary so that no portion of the Payments is subject to the excise tax under Section 4999 of the Code, reduction shall occur in the manner that results in the greatest economic benefit to Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. If this Section 11(b) is applied to reduce an amount payable to Executive, and the Internal Revenue Service successfully asserts that, despite the reduction, Executive has nonetheless received payments which are in excess of the maximum amount that could have been paid to his without being subjected to any excise tax, then, unless it would be unlawful for the Company shall bear make such a loan or similar extension of credit to Executive, Executive may repay such excess amount to the cost Company though such amount constitutes a loan to Executive made at the date of all fees payment of such excess amount, bearing interest at 120% of the Accountants charge applicable federal rate (as determined under section 1274(d) of the Code in connection with any calculations contemplated by this Section 6(grespect of such loan).
Appears in 1 contract
Section 280G. In (a) If any of the event that payments or benefits received or to be received by the Executive (including, without limitation, any paymentspayment or benefits received in connection with a Change in Control or the Executive’s termination of employment, distributionswhether pursuant to the terms of this Agreement or any other plan, benefits arrangement, or entitlements of any type payable to Employee (“CIC Benefits”agreement, or otherwise) (iall such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the CodeCode and would, and (ii) but for this paragraph would Section 2.9, be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits such 280G Payments shall be either (i) be paid in full, or (ii) reduced to such lesser amount in a manner determined by the Company (by the “Reduced Amount”minimum possible amounts) that would result in is consistent with the requirements of Section 409A until no portion of such benefits being amount payable to the Executive will be subject to the Excise Tax; provided that such , 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 280G Payments. If two economically equivalent amounts are subject to reduction but are payable at different times, the amounts shall be reduced (but not below zero) on a pro rata basis.
(b) All calculations and determinations under this Section 2.9 shall be so reduced if the Company determines, based on the advice of a nationally recognized made by an independent accounting firm selected or independent tax counsel appointed by the Company prior to a Change of Control (the “AccountantsTax Counsel”), that without such reduction Employee would ) whose determinations shall be entitled to receive conclusive and retain, binding on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g)2.9, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee the Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(g), and the 2.9. The Company shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 6(g)its services.
Appears in 1 contract
Section 280G. 6.4.1. In the event it shall be determined that any paymentspayment or distribution to the Executive or for the Executive’s benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Internal Revenue Code (the “Code”)), distributionswhether paid or payable pursuant to this Agreement or otherwise (a “Payment”), benefits would constitute a “parachute payment” under Section 280G(b)(2) of the Code and would be subject to the excise tax imposed by Section 4999 of the Code (together with any interest or entitlements penalties imposed with respect to such excise tax, the “Excise Tax”), then the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit received by the Executive shall exceed the net after-tax benefit received by the Executive if no such reduction was made. The specific payments shall be reduced and the order of such reduction shall be determined so as to achieve the most favorable economic impact to the Executive. To the extent such determination by the Executive is permitted by Section 409A (as hereafter defined) and other tax requirements, the Executive shall determine the ordering of any type payable reduction. To the extent the ordering of the reduction is required by Section 409A or other tax principles to Employee be done other than by the Executive, the Accounting Firm (as hereinafter defined) shall determine the ordering of any reduction to achieve the most favorable economic benefit to the Executive. To the extent the ordering of the reduction is required by Section 409A or other tax principles to be done other than by the Executive and to be more specifically set forth in advance then such reduction to achieve the most favorable economic benefit to the Executive shall be determined by the Accounting Firm. Any reduction in the Payments as determined by the Accounting Firm shall be applied first against the latest scheduled cash payments; then current cash payments; then any equity or equity derivatives that are included under Section 280G of the Code at an accelerated value (and not at full value) shall be reduced with the highest value reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); finally any other non-cash benefits will be reduced. For purposes of this Section 6.4.1, “CIC Benefits”) net after-tax benefit” shall mean (i) the Payments which the Executive receives or are then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, and less (ii) but for this paragraph would be subject the amount of all federal, state and local income taxes payable with respect to the excise Payments calculated at the maximum marginal income tax imposed by Section 4999 rate for each year in which the Payments shall be paid to the Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the Code first payment of the foregoing), less (iii) the amount of Excise Taxes imposed with respect to the Payments.
6.4.2. All determinations required to be made under this Section 6.4 shall be made by such nationally recognized accounting firm as may be selected by the Company after reasonable consultation with the Executive (the “Excise TaxAccounting Firm”), then Employeeprovided, that the Accounting Firm’s CIC Benefits determination shall be reduced made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to the Executive and the Company within 15 business days following the date of termination of the Executive’s employment, if applicable, or such lesser amount other time as requested by the Executive (provided that the “Reduced Amount”) Executive reasonably believes that would result in no portion any of such benefits being the Payments may be subject to the Excise Tax; provided that ) or the Company. All reasonable fees and expenses of the Accounting Firm in reaching such amounts a determination shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected borne solely by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company.
Appears in 1 contract
Samples: Employment Agreement (ViewRay, Inc.)
Section 280G. In (a) If any of the event that payments or benefits received or to be received by the Executive (including, without limitation, any paymentspayment or benefits received in connection with a Change in Control or the termination of the Executive’s employment, distributionswhether pursuant to the terms of this Agreement or any other plan, benefits arrangement or entitlements of any type payable to Employee (“CIC Benefits”agreement, or otherwise) (iall such payments collectively refer to herein as the "280G Payments") 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 paragraph would will be subject to the excise tax imposed by under Section 4999 of the Code (the “"Excise Tax”"), then Employee’s CIC Benefits the Company shall pay to the Executive, no later than the time such Excise Tax is required to be paid by the Executive or withheld by the Company, an additional amount equal to the sum of the Excise Tax payable by the Executive, plus the amount necessary to put the Executive in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest applicable rates on such 280G Payments and on any payments under this Section 7(a) or otherwise) as if no Excise Tax had been imposed.
(b) All calculations and determinations under this Section 7 shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized made by an independent accounting firm selected or independent tax counsel appointed by the Company prior to a Change of Control (the “Accountants”)"Tax Counsel") whose reasonable, that without such reduction Employee would good faith determination shall be entitled to receive conclusive and retain, binding on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g7(b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application applicability of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee the Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(g7(b), and the . The Company shall bear all costs of the cost of all fees the Accountants charge Tax Counsel reasonably incurred in connection with any calculations contemplated by the performance of its duties under this Section 6(g7(b).
Appears in 1 contract
Section 280G. In If any payment or benefit Executive will or may receive from the event that any payments, distributions, benefits Company under this Agreement or entitlements of any type payable to Employee otherwise would (“CIC Benefits”) (ia) constitute a “parachute paymentspayment” within the meaning of Section 280G of the CodeCode (a “280G Payment”) and, and (iib) but for this paragraph would sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employeethe Company shall cause to be determined, before any amounts of the 280G Payment are paid to Executive, which of the following two amounts would maximize Executive’s CIC Benefits shall be reduced to such lesser after-tax proceeds: (i) payment in full of the entire amount of the 280G Payment (a “Full Payment”), or (ii) payment of only a part of the 280G Payment, so that Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced AmountPayment”) ), whichever amount results in Executive’s receipt, on an after-tax basis, of the greater amount of the 280G Payment notwithstanding that would result in no all or some portion of such benefits being the 280G Payment may be subject to the Excise Tax; provided that such amounts shall not be so reduced if . For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company determinesshall cause to be taken into account all applicable federal, based on state and local income and employment taxes and the advice Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a nationally recognized accounting firm selected deduction of such state and local taxes). If a Reduced Payment is made, (A) the 280G 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 280G Payment, and (B) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit for Executive, as determined in the Company’s reasonable good faith discretion. All determinations required to be made under this Section 9(n), including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of any such reduction and the assumptions to be utilized in arriving at such determinations not expressly provided for herein, shall be made in a manner determined by the Company. Any determination by the Company prior shall be binding upon Executive, absent manifest error. For purposes of determining whether and the extent to which the payments will be subject to the Excise Tax: (i) no portion of the payments shall be taken into account which does not constitute a Change “parachute payment” within the meaning of Control (Section 280G(b)(2) of the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis Code (including, without limitation, any excise taxes payable under by reason of Section 4999 280G(b)(4)(A) of the Code)) and (ii) in calculating the Excise Tax, an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt no portion of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) such payments shall be made in writing in good faith by taken into account which constitutes reasonable compensation for services actually rendered, within the Accountants. In the event meaning of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii280G(b)(4)(B) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish in excess of the “base amount” (as set forth in Section 280G(b)(3) of the Code) that is allocable to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)reasonable compensation.
Appears in 1 contract
Section 280G. In Notwithstanding anything to the event that contrary in this Agreement, if the Employee is a “disqualified individual” (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any paymentsother payments and benefits which the Employee has the right to receive from the Company, distributionsParent or any of their affiliates, benefits or entitlements of any type payable to Employee (“CIC Benefits”) (i) would constitute a “parachute paymentspayment” within the meaning of (as defined in Section 280G 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (iia) reduced (but for this paragraph would not below zero) so that the present value of such total amounts and benefits received by the Employee from the Company, Parent and their affiliates will be one dollar ($1.00) less than three times the Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) such that no portion of such amounts and benefits received by the Employee shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the “Excise Tax”better net after-tax position to the Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, then Employee’s CIC Benefits if applicable, shall be reduced made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such lesser amount (the “Reduced Amount”) payment or benefit that would result be made first in no portion time) and, then, reducing any benefit to be provided in-kind hereunder or otherwise in a similar order. The determination as to whether any such reduction in the amount of such the payments and benefits being subject to the Excise Tax; provided that such amounts hereunder is necessary shall not be so reduced if the Company determines, based on the advice of made by a nationally recognized accounting or consulting firm selected retained by the Company prior at the Company’s expense. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company, Parent or their affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times the Employee’s base amount, then the Employee shall immediately repay such excess to a Change of Control (the “Accountants”)Company, Parent or their affiliate, as applicable, upon notification that without such reduction Employee would an overpayment has been made. Nothing in this Section 22 shall require the Company or Parent to be entitled to receive and retainresponsible for, on a net after or have any liability or obligation with respect to, the Employees’ excise tax basis (including, without limitation, any excise taxes payable liabilities under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).
Appears in 1 contract
Samples: Special Retention Bonus Agreement (PET Acquisition LLC)
Section 280G. (a) In the event that any paymentspayment or benefit made or provided to or for the benefit of the Executive under this Agreement, distributionsor under any plan, benefits agreement, program or entitlements arrangement of the Company, of any type payable to Employee Person effecting a change in control of the Company (a “CIC Benefits280G Change in Control”), or any affiliates of any of the foregoing (a “Payment”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would is determined to be subject to the any excise tax (“Excise Tax”) imposed by Section 4999 of the Code (Code, or any comparable state or local tax provision, the “Excise Tax”), then Employee’s CIC Benefits Company shall reduce the amount of such Payment to the greatest amount that can be reduced paid to such lesser amount (the “Reduced Amount”) that would result in no Executive without any portion of such benefits the Payment being subject to the Excise Tax; provided however, that such amounts reduction shall not be made only to the extent that the reduction results in the Executive retaining a greater “After Tax Amount” (as defined below) of the Payments following the reduction than the After Tax Amount of the Payments the Executive would have retained if no such reduction had taken place. For purposes of the foregoing, (i) the “After Tax Amount” of the Executive’s Payments, as computed with and as computed without the reduction provided for in this Section 22, shall mean the amount of the Payments, as so reduced computed, that the Executive would retain after payment of all taxes (including any federal, state or local income taxes, the Excise Tax or other excise taxes, any employment, social security or Medicare taxes, and any other taxes) imposed with respect to such Payments in the year or years in which payable and (ii) the amount of such taxes shall be computed at the rates in effect under the applicable tax laws in the year in which the applicable 280G Change in Control occurs, or if then ascertainable, the Company determinesrates in effect in any later year in which any Payment is expected to be paid, based on and in the advice case of a any income taxes, by using the combined federal, state and (if applicable) local income tax rates then in effect under such laws. The determination of whether any Payment is subject to the Excise Tax and, if so, the amount of any reduction shall be made by an independent, nationally recognized United States public accounting firm (the “Auditor”). The Auditor shall be selected by the Company prior (subject to a Change of Control (the “Accountants”Executive’s approval, which shall not be unreasonably withheld or delayed), that without such reduction Employee would and shall be entitled to receive and retain, on a net after tax basis paid for by the Company. Such determination shall be made no later than fifteen (including, without limitation, any excise taxes payable under Section 4999 15) days following the closing of the Code), an amount that is greater than transaction or the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt occurrence of the Reduced Amountevent that constitutes the 280G Change in Control, or as soon thereafter as administratively practicable. Unless The Auditor shall provide a written report of its determinations hereunder, including detailed supporting calculations, both to the Company Executive and Employee otherwise agree to the Company. In the absence of manifest error, the determinations made by the Auditor hereunder shall be binding upon the Executive and the Company. The Parties shall cooperate with each other in writing, connection with any determination Proceeding or Claim relating to the existence or amount of any liability for any Excise Tax.
(b) Any reductions in the Executive’s Payments required under to be made pursuant to this Section 6(g) 22 above shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits following order: (i) payments that are payable in cash that are valued at full value under Treasury Regulation Section 6(d)(ii1.280G-1, Q&A 24(a) and 6(d)(iii) and then by reducing or eliminating any will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity valued at full value under Treasury Regulation Section 1.280G-1, Q&A 24(a), with respect to long-term incentives including any equity-based or equity-related awards the highest values reduced first (whether as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24) will next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with amounts that are payable last reduced first, will next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24 will next be reduced; (v) all other non-cash benefits not otherwise described in clauses (ii) or in kind)(iv) will be next reduced pro-rata. For purposes of making the calculations required by this Section 6(g)Within ten (10) days following such determination hereunder, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear pay or distribute to or for the cost benefit of all fees the Accountants charge Executive such amounts as are then due to the Executive under this Agreement and shall promptly pay or distribute to or for the benefit of the Executive such amounts as become due to the Executive under, and in connection accordance with any calculations contemplated by the terms of, this Section 6(g)Agreement.
Appears in 1 contract
Samples: Employment Agreement (Diamond Offshore Drilling Inc)
Section 280G. In the event that any payments, distributions, payments and other benefits provided for in this Agreement or entitlements of any type otherwise payable to Employee (“CIC Benefits”) (i) the Executive constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) and, but for this paragraph paragraph, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits shall any post-termination severance payments and benefits payable under this Agreement or otherwise will be reduced either (1) delivered in full or (2) delivered as to such lesser amount (the “Reduced Amount”) that extent which would result in no portion of such payments and benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than whichever of the amountforegoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Executive, on a net after an after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of payments and benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in the Executive’s payments and benefits is necessitated by the preceding sentence, such reduction will occur in the following order: (i) any cash severance based on a multiple of base salary or annual bonus, (ii) any other cash amounts payable to the Executive, (iii) benefits valued as parachute payments, and (iv) acceleration of vesting of any equity awards. Unless the Company and Employee the Executive otherwise agree in writing, any determination required under this Section 6(g) shall paragraph will be made in writing in good faith by the Accountants. In Company’s independent public accountants (the event of a reduction of benefits hereunder“Firm”), benefits shall whose determination will be reduced by first reducing or eliminating conclusive and binding upon the portion of Executive and the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company. For purposes of making the calculations required by this Section 6(g)paragraph, the Accountants 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, and other applicable legal authority. The Company and Employee shall the Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably require request in order to make a determination under this Section 6(g), and paragraph. The Company will bear all costs the Company shall bear the cost of all fees the Accountants charge Firm may incur in connection with any calculations contemplated by this Section 6(g)paragraph.
Appears in 1 contract
Section 280G. In the event that any payments, distributions, benefits or entitlements of any type payable to Employee Executive (the “CIC BenefitsTotal Payments”) would (i) constitute “parachute payments” within the meaning of Section 280G of the Code (which will not include any portion of payments allocated to the restrictive covenant provisions of Section 10 hereof that are classified as payments of reasonable compensation for purposes of Section 280G of the Code), and (ii) but for this paragraph would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits the Total Payments shall be reduced either: (a) provided in full, or (b) provided as to such lesser amount (the “Reduced Amount”) that extent as would result in no portion of such benefits Total Payments being subject to the Excise Tax; provided , whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in Executive’s receipt on an after-tax basis of the greatest amount of the Total Payments, notwithstanding that such amounts all or some portion of the Total Payments may be subject to the Excise Tax. Unless the Employer and Executive otherwise agree in writing, any determination required under this Section 8 shall not be so reduced if the Company determines, made in writing in good faith based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change Employer (with approval of Control Executive) (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits Total Payments that are payable in cash under Section 6(d)(ii) and 6(d)(iii) 7 and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g)8, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company Employer and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g)8, and the Company Employer shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)8.
Appears in 1 contract
Samples: Ceo Employment Agreement (India Globalization Capital, Inc.)
Section 280G. In the event that any payments, distributions, benefits or entitlements of any type The amounts payable to Employee the Executive under Section 4 may be adjusted as set forth in this Section 5 if the sum (the “CIC Benefitscombined amount”) (iof the amounts payable under Section 4 and all other payments or benefits which the Executive has received or has the right to receive from the Company which are defined in Section 280G(b)(2)(A)(i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) would, but for the application of this paragraph Section 5, constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code). In such event, the combined amount shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes a parachute payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payments and benefits to be subject provided to the Executive, determined on an after-tax basis (taking into account the excise tax imposed by pursuant to Section 4999 of the Code (Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). To the “Excise Tax”extent the reduction referred to in the second sentence of this Section 5 applies, such reduction shall be made to the combined amount by reduction of the aggregate amount of the lump sum payments described in Sections 4(a)(ii), then Employee’s CIC Benefits 4(a)(iii) and 4(a)(v) of this Agreement and, to the extent further reductions are required, in such payments due to the Executive as the Company may determine. Any determinations required to be made under this Section 5 shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized made by an independent accounting firm selected by the Executive, which shall provide detailed supporting calculations both to the Company prior and the Executive within 15 business days of the date of termination or such earlier time as is requested by the Company, and shall be made at the expense of the Company. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 5 shall not of itself limit or otherwise affect any other rights of the Executive under this Agreement. If at any time subsequent to payment, the independent accounting firm believes that amounts that have been paid or distributed by the Company to or for the benefit of the Executive should not have been paid or distributed, based upon the assertion of a Change deficiency by the Internal Revenue Service against the Company or the Executive which the independent accounting firm believes has a high probability of Control success (the an “AccountantsOverpayment”), the Executive shall pay any such Overpayment to the Company together with interest at the applicable federal rate; provided, however, that without no amount shall be payable by Executive to the Company to the extent the payment would not either reduce the amount on which the Executive is subject to tax or generate a refund of such reduction Employee would be entitled tax. If the independent accounting firm determines that additional amounts could have been paid or distributed to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 or for the benefit of the Code), Executive (an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g“Underpayment”), the Accountants may make reasonable assumptions and approximations concerning Underpayment shall be paid within sixty (60) days following the date on which the Underpayment is determined together with interest at the applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)federal rate.
Appears in 1 contract
Samples: Change in Control Severance Agreement (Polypore International, Inc.)
Section 280G. In the event that any payments, distributions, benefits payment or entitlements benefit that the Executive would receive from the Company or otherwise in connection with a change of any type payable to Employee control or other similar transaction (a “CIC Benefits280G Payment”) (i) would constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph Section 8.6, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits any such 280G Payment shall be reduced payable either (a) in full, or (b) as to such lesser amount (the “Reduced Amount”) that which would result in no portion of such payments and benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable 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 amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of payments and benefits notwithstanding that all or some portion of such payments and benefits may be taxable under Section 4999 of the Code. Unless the Company and Employee otherwise agree in writing, any determination required If a reduced amount is to be paid under this Section 6(g6.1, reductions in payments and/or benefits shall occur in the following order: (1) if none of the payments is nonqualified deferred compensation under Section 409A, then the reduction shall occur in the manner the Executive elects in writing prior to the date of payment and (2) if any payment constitutes nonqualified deferred compensation under Section 409A or if the Executive fails to elect an order, then the payments to be reduced shall be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, shall be reduced in the inverse order of when payment would have been made to Executive, until the reduction is achieved; provided, however, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of such payment in manner that does not comply with Section 409A. All determinations required to be made under this paragraph, including the manner and amount of any reduction in your payments hereunder, and the assumptions to be utilized in arriving at such determinations, shall be made in writing in good faith by a nationally recognized accounting or consulting firm selected by the Accountants. In Company and subject to the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating Executive’s reasonable approval (the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind“Accounting Firm”). For purposes of making the determinations and calculations required by this Section 6(g)paragraph, the Accountants Accounting 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, and other applicable legal authorityprovided that no portion of any such amounts shall be taken into account which constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as set forth in Section 280G(b)(3) of the Code) that is allocable to such reasonable compensation. The Company and Employee the Executive shall furnish to the Accountants Accounting Firm such information and documents as the Accountants Accounting Firm may reasonably require in order request to make a determination under this Section 6(g), 8.6. The Accounting Firm shall provide its written report to the Company and the Executive, which shall include information regarding methodology and detailed supporting calculations. The Company shall bear all reasonable fees, costs and expenses the cost of all fees the Accountants charge Accounting Firm may incur in connection with any calculations contemplated by this paragraph. The Executive and the Company shall reasonably cooperate in case of a potential change in control of the Company (within the meaning of Section 6(g)280G of the Code) to consider alternatives to mitigate any Section 280G exposure, including the valuation of any noncompetition covenants, although the Company cannot guarantee any such alternatives will be available or approved by the Company and neither the Executive nor the Company shall be obligated to enter into any alternative arrangements.
Appears in 1 contract
Section 280G. In (a) Officer shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the event Code (such excise tax being the “Excise Tax”); provided, however, that any paymentspayment or benefit received or to be received by Officer, distributionswhether payable under the terms of this Agreement or any other plan, benefits arrangement or entitlements agreement with Employer or an affiliate of any type payable to Employee Employer (collectively, the “CIC BenefitsPayments”) that would constitute a “parachute payment” within the meaning of Section 280G of the Code, shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit Officer receives shall exceed the net after-tax benefit that Officer would receive if no such reduction was made.
(b) The “net after-tax benefit” shall mean (i) the Payments which Officer receives or is then entitled to receive from Employer that would constitute “parachute payments” within the meaning of Section 280G of the Code, and less (ii) but the amount of all federal, state and local income and employment taxes payable by Officer with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to Officer (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Tax imposed with respect to the payments and benefits described in (b)(i) above.
(c) All determinations under this paragraph Section 8 will be made by an accounting firm or law firm (the “280G Firm”) that is mutually agreed to by Officer and Employer prior to a change in ownership or control of a corporation (within the meaning of Treasury regulations under Section 280G of the Code). The 280G Firm shall be required to evaluate the extent to which payments are exempt from Section 280G of the Code as reasonable compensation for services rendered before or after the Change of Control. All fees and expenses of the 280G Firm shall be paid solely by Employer. Employer will direct the 280G Firm to submit any determination it makes under this Section 8 and detailed supporting calculations to both Officer and Employer as soon as reasonably practicable.
(d) If the 280G Firm determines that one or more reductions are required under this Section 8, such Payments shall be reduced in the order that would provide Officer with the largest amount of after-tax proceeds (with such order, to the extent permitted by Sections 280G and 409A of the Code, designated by Officer, or otherwise determined by the 280G Firm) to the extent necessary so that no portion thereof shall be subject to the excise Excise Tax, and Employer shall pay such reduced amount to Officer. Officer shall at any time have the unilateral right to forfeit any equity award in whole or in part.
(e) As a result of the uncertainty in the application of Section 280G of the Code at the time that the 280G Firm makes its determinations under this Section 8, it is possible that amounts will have been paid or distributed to Officer that should not have been paid or distributed (collectively, the “Overpayments”), or that additional amounts should be paid or distributed to Officer (collectively, the “Underpayments”). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against Officer or Employer, which assertion the 280G Firm believes has a high probability of success or is otherwise based on controlling precedent or substantial authority, that an Overpayment has been made, Officer must repay the Overpayment to Employer, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by Officer to Employer unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which Officer is subject to tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion or generate a refund of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable imposed under Section 4999 of the Code). If the 280G Firm determines, an amount that is greater than the amount, on a net after tax basisbased upon controlling precedent or substantial authority, that Employee would be entitled an Underpayment has occurred, the 280G Firm will notify Officer and Employer of that determination, and Employer will promptly pay the amount of that Underpayment to retain upon receipt Officer without interest.
(f) Officer and Employer will provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the Reduced Amount. Unless the Company determinations and Employee otherwise agree in writing, any determination required under calculations contemplated by this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)8. For purposes of making the calculations required by this Section 6(g)8, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and 280G Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g).
Appears in 1 contract
Section 280G. In (a) Notwithstanding anything contained in this Agreement to the event contrary, (i) to the extent that any payments, distributions, benefits payment or entitlements distribution of any type to or for the benefit of Xxxxxx by Altimmune, any affiliate thereof, any person or entity who acquires ownership or effective control of Altimmune or ownership of a substantial portion of Altimmune’s assets (within the meaning of Section 280G of the Code and the regulations thereunder), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to Employee the terms of this Agreement or otherwise (the “CIC BenefitsPayments”) (i) constitute constitutes “parachute payments” (within the meaning of Section 280G of the Code), and if (ii) but for this paragraph would be subject to such aggregate Payments would, if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), be less than the amount Xxxxxx would receive, after all taxes, if Xxxxxx received aggregate Payments equal (as valued under Section 280G of the Code) to only three times Xxxxxx’x “base amount” (within the meaning of Section 280G of the Code), less $1.00, then Employee’s CIC Benefits (iii) such Payments shall be reduced (but not below zero) if and to such lesser amount (the “Reduced Amount”) extent necessary so that would result in no portion of such benefits being Payments to be made or benefit to be provided to Xxxxxx shall be subject to the Excise Tax; .
(b) The determination of whether the Payments shall be reduced as provided that in Section 22(a) hereof and the amount of such amounts reduction shall not be so reduced if the Company determines, based on the advice of a nationally recognized made at Altimmune’s expense by an independent public accounting firm of national reputation selected by the Company prior to a Change of Control Altimmune (the “AccountantsAccounting Firm”). The Accounting Firm shall provide its determination (the “Determination”), together with detailed supporting calculations and documentation, to Altimmune and Xxxxxx within ten (10) days after Xxxxxx’x final day of employment. If the Accounting Firm determines that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes no Excise Tax is payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable Xxxxxx with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g)Payments, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee it shall furnish Xxxxxx with an opinion reasonably acceptable to the Accountants him that no Excise Tax will be imposed with respect to any such information payments and, absent manifest error, such Determination shall be binding, final and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), conclusive upon Altimmune and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Xxxxxx.
Appears in 1 contract
Section 280G. 6.4.1. In the event it shall be determined that any paymentspayment or distribution to the Executive or for the Executive’s benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Internal Revenue Code (the “Code”)), distributionswhether paid or payable pursuant to this Agreement or otherwise (a “Payment”), benefits would constitute a “parachute payment” under Section 280G(b)(2) of the Code and would be subject to the excise tax imposed by Section 4999 of the Code (together with any interest or entitlements penalties imposed with respect to such excise tax, the “Excise Tax”), then the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit received by the Executive shall exceed the net after-tax benefit received by the Executive if no such reduction was made. The specific payments shall be reduced and the order of such reduction shall be determined so as to achieve the most favorable economic impact to the Executive. To the extent such determination by the Executive is permitted by Section 409A (as hereafter defined) and other tax requirements, the Executive shall determine the ordering of any type payable reduction. To the extent the ordering of the reduction is required by Section 409A or other tax principles to Employee be done other than by the Executive, the Accounting Firm (as hereinafter defined) shall determine the ordering of any reduction to achieve the most favorable economic benefit to the Executive. To the extent the ordering of the reduction is required by Section 409A or other tax principles to be done other than by the Executive and to be more specifically set forth in advance then such reduction to achieve the most favorable economic benefit to the Executive shall be determined by the Accounting Firm. Any reduction in the Payments as determined by the Accounting Firm shall be applied first against the latest scheduled cash payments; then current cash payments; then any equity or equity derivatives that are included under Section 280G of the Code at an accelerated value (and not at full value) shall be reduced with the highest value reduced first (as such values are determined under Treasury Regulation
Section 1. 280G-1, Q&A 24); finally any other non-cash benefits will be reduced. For purposes of this Section 6.4.1, “CIC Benefits”) net after-tax benefit” shall mean (i) the Payments which the Executive receives or are then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, and less (ii) but for this paragraph would be subject the amount of all federal, state and local income taxes payable with respect to the excise Payments calculated at the maximum marginal income tax imposed by Section 4999 rate for each year in which the Payments shall be paid to the Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the Code first payment of the foregoing), less (iii) the amount of Excise Taxes imposed with respect to the Payments.
6.4.2. All determinations required to be made under this Section 6.4 shall be made by such nationally recognized accounting firm as may be selected by the Company after reasonable consultation with the Executive (the “Excise TaxAccounting Firm”), then Employeeprovided, that the Accounting Firm’s CIC Benefits determination shall be reduced made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to the Executive and the Company within 15 business days following the date of termination of the Executive’s employment, if applicable, or such lesser amount other time as requested by the Executive (provided that the “Reduced Amount”) Executive reasonably believes that would result in no portion any of such benefits being the Payments may be subject to the Excise Tax; provided that ) or the Company. All reasonable fees and expenses of the Accounting Firm in reaching such amounts a determination shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected borne solely by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company.
Appears in 1 contract
Samples: Employment Agreement (ViewRay, Inc.)
Section 280G. In Notwithstanding any other provision of this Agreement, in the event that any paymentsit shall be determined that the aggregate payments or distributions by the Company to or for the benefit of Executive, distributionswhether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Payments”), benefits or entitlements of any type payable to Employee (“CIC Benefits”) (i) constitute “excess parachute payments” within the meaning of (as such term is defined under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (iicollectively, “Section 280G”)) but for this paragraph that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee’s CIC Benefits the Payments shall be reduced either (a) delivered in full, or (b) delivered to such lesser amount (the “Reduced Amount”) extent that would result in no portion of such benefits the Payments being subject to the Excise Tax; provided that such amounts shall not be so reduced if , whichever of the Company determinesforegoing amounts, based on taking into account the advice of a nationally recognized accounting firm selected applicable Federal, state or local income and employment taxes and the Excise Tax, results in the receipt by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retainExecutive, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of benefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. Unless In the Company and Employee otherwise agree in writing, any determination required under event that the Payments are to be reduced pursuant to this Section 6(g) 13, such Payments shall be reduced such that the reduction of compensation to be provided to Executive as a result of this Section 13 is minimized. In applying this principle, the reduction shall be made in writing a manner consistent with the requirements of Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero). All calculations required pursuant to this Section 13 shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Company.
Appears in 1 contract
Samples: Employment Agreement (IDI, Inc.)
Section 280G. In (a) If all or any portion of the event that payments and benefits provided to Executive under this Agreement, or any paymentsother payment or benefit (including under any plan or arrangement adopted in the future), distributions, benefits or entitlements of any type payable to Employee (“CIC Benefits”) (i) would otherwise constitute “excess parachute payments” within the meaning of Section 280G of the CodeCode (“Payments”), then the amount of such Payments shall be reduced to an amount that would result in there being no excess parachute payments; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate Payments to be provided, determined on an after-tax basis (ii) but for this paragraph would be subject to taking into account the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). If any such reduction is necessary hereunder, cash payments shall be modified or reduced first, against the latest amounts otherwise payable, and then any other benefits on a prorated basis. Determination of whether the Payments would constitute an excess parachute payment, and the amount of reduction so that no excess parachute payments shall exist, shall be made, at the Employer’s expense, by the independent accounting firm employed by the Employer immediately prior to such lesser amount the occurrence of any Change in Control (the “Reduced AmountDetermination Firm”). The determination of the Determination Firm will be binding upon the Employer and Executive.
(b) This Agreement contains covenants of Executive to refrain from certain activities deemed harmful to the Employer for a set period of time in exchange for the promises contained herein. If Executive is deemed eligible to receive Payments under this Agreement that would result in no portion of such benefits being could be subject to the Excise Tax; provided that such amounts , the Employer shall not be so reduced if seek a valuation from the Company determines, based on Determination Firm to determine the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 value of the Code), an covenants contained in this Agreement and such amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of allocated to such arrangements and be excluded from treatment as a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)Payment.
Appears in 1 contract
Section 280G. In (a) To the event extent that any paymentspayment or distribution to or for the benefit of the Participant pursuant to the terms of this Agreement or any other plan, distributionsarrangement or agreement with the Company, benefits any affiliate, any person whose actions result in a change of ownership or entitlements effective control covered by Section 280G(b)(2) of the Code or any type person affiliated with the Company or such person, whether paid or payable or distributed or distributable pursuant to Employee the terms of this Agreement or otherwise (the “CIC BenefitsPayments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code Code, then the Company shall pay or provide to the Participant the greatest of the following, whichever gives the Participant the highest net after-tax amount (after taking into account federal, state, local and social security taxes at the maximum marginal rates): (1) the Payments, or (2) one dollar less than the amount of the Payments that would subject the Participant to the Excise Tax (the “Excise TaxSafe Harbor Cap”). If the Payments are so reduced, the Company shall reduce or eliminate the Payments in the following order: (A) equity-based payments that may not be valued under Treas. Reg. Section 1.280G-1, Q&A-24(c) (“24(c)”), then Employee’s CIC Benefits (B) cash-based payments that many not be valued under 24(c), (C) equity-based payments that may be valued under 24(c), (D) cash payments that may be valued under 24(c) and (E) other types of benefits. With respect to each category of the foregoing, such reduction shall occur first with respect to amounts that are not "deferred compensation" within the meaning of Section 409A of the Code and next with respect to payments that are deferred compensation, in each case, beginning with payments or benefits that are to be paid the farthest in time from the Qualified Firm's (as defined below) determination.
(b) All determinations required to be made under this Section 9, including whether and when the Safe Harbor Cap is required and the amount of the reduction of the Payments pursuant to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determination, shall be reduced to such lesser amount made by a certified public accounting firm or executive compensation consulting firm, in either case of national standing (the a “Reduced AmountQualified Firm”) that would result in no portion of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior that is reasonably acceptable to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive Participant. All fees and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 expenses of the Code), an amount that is greater than Qualified Firm shall be borne solely by the amount, on a net after tax basis, that Employee would Company. Any determination by the Qualified Firm shall be entitled to retain binding upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writingthe Participant. Participant shall cooperate, any determination required under this Section 6(g) shall be made in writing in good faith to the extent Participant’s reasonable out-of-pocket expenses are reimbursed by the Accountants. In the event of a reduction of benefits hereunderCompany, benefits shall be reduced with any reasonable requests by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 6(g), and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 6(g)contests or disputes with the Internal Revenue Service in connection with the Excise Tax.
Appears in 1 contract
Samples: Restricted Stock Award Agreement (Abraxas Petroleum Corp)
Section 280G. In (a) If any of the event that payments or benefits received or to be received by Executive (including, without limitation, any paymentspayment or benefits received in connection with a Change in Control or Executive’s termination of employment, distributionswhether pursuant to the terms of this Agreement or any other plan, benefits arrangement, or entitlements of any type payable to Employee (“CIC Benefits”agreement, or otherwise) (iall such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the CodeCode and would, and (ii) but for this paragraph would Section 5.7, be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then Employee’s CIC Benefits such 280G Payments shall be reduced to such lesser amount in a manner determined by the Company (by the “Reduced Amount”minimum possible amounts) that would result in is consistent with the requirements of Section 409A until no portion of such benefits being amount payable to Executive will be subject to the Excise Tax; provided that such . If two economically equivalent amounts are subject to reduction but are payable at different times, the amounts shall be reduced (but not below zero) on a pro rata basis.
(b) All calculations and determinations under this Section 5.7 shall be so reduced if the Company determines, based on the advice of a nationally recognized made by an independent accounting firm selected or independent tax counsel appointed by the Company prior to a Change of Control (the “AccountantsTax Counsel”), that without such reduction Employee would ) whose determinations shall be entitled to receive conclusive and retain, binding on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Executive for all purposes. For purposes of making the calculations and determinations required by this Section 6(g)5.7, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company and Employee Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably require request in order to make a determination its determinations under this Section 6(g), and the 5.7. The Company shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 6(g)its services.
Appears in 1 contract
Section 280G. a. In the event that any part or all of the consideration, compensation or benefits to be paid to Executive under this Agreement together with the aggregate present value of payments, distributionsconsideration, compensation and benefits or entitlements of any type payable under all other plans, arrangements and agreements applicable to Employee (“CIC Benefits”) (i) Executive, constitute “excess parachute payments” within the meaning of under Section 280G 280G(b) of the Code, and (ii) but for this paragraph would be Code subject to the an excise tax imposed by under Section 4999 of the Code (collectively, the “Excise TaxParachute Amount”), then Employee) the amount of excess parachute payments which would otherwise be payable to Executive or for Executive’s CIC Benefits benefit under this Agreement shall be reduced to such lesser the extent necessary so that no amount of the Parachute Amount is subject to an excise tax under Section 4999 (the “Reduced Amount”) that would result in no portion of such benefits being subject to the Excise Tax); provided that such amounts shall not be so reduced if the Company determinesif, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee reduction, Executive would be entitled to receive and retain, on a net after tax basis (including, without limitation, after any excise taxes payable under Section 4999 of the Code4999), an amount that of the Parachute Amount which is greater than the amount, on a net after tax basis, that Employee Executive would be entitled to retain upon receipt of the Reduced Amount. Unless .
b. If the Company and Employee otherwise agree determination made pursuant to Section 12(a) results in writing, any determination required under this Section 6(g) shall be made in writing in good faith by the Accountants. In the event of a reduction of benefits hereunderthe payments that would otherwise be paid to Executive except for the application of Section 12(a), benefits such reduction in payments due under this Agreement shall be reduced by first reducing or eliminating the portion applied to reduce any cash severance payments that Executive would otherwise be entitled to receive hereunder and shall thereafter be applied to reduce other payments and benefits in a manner that would not result in subjecting Executive to additional taxation under Section 409A of the CIC Benefits that are payable in cash Code. Within ten days following such determination, but not later than thirty days following the date of the event under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 6(g280G(b)(2)(A)(i), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish pay or distribute to the Accountants Executive or for Executive’s benefit such information and documents amounts as the Accountants may reasonably require in order are then due to make a determination Executive under this Section 6(g), Agreement and shall promptly pay or distribute to Executive or for his benefit in the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by future such amounts as become due to Executive under this Section 6(g)Agreement.
Appears in 1 contract
Section 280G. In the event that any payments, distributions, the severance and other benefits provided for in this Agreement or entitlements of any type otherwise payable to Employee (“CIC Benefits”) (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 paragraph Section, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits severance benefits under this Agreement shall be reduced payable either (i) in full, or (ii) as to such lesser amount (the “Reduced Amount”) that which would result in no portion of such severance benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable under Section 4999 of the Code), an amount that is greater than whichever of the foregoing amount, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Employee on a net after an after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) shall be made in writing in good faith writing, by the Company’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose determination shall be reduced by first reducing or eliminating conclusive and binding upon Employee and the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g)Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g), and the Section. The Company shall bear the cost of all fees costs the Accountants charge may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6(g)Section.
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Section 280G. In Notwithstanding anything to the event contrary contained in this Agreement, to the extent that any paymentsof the payments and benefits provided for under this Agreement or any other agreement or arrangement between Executive and the Company (collectively, distributions, benefits or entitlements of any type payable to Employee (the “CIC BenefitsPayments”) (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph Section 11, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits the Payments shall be reduced payable either (i) in full or (ii) as to such lesser amount (the “Reduced Amount”) that which would result in no portion of such benefits Payments being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable 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 Executive’s receipt on an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of economic benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Executive and the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) 11 shall be made in writing in good faith by the Company’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose reasonable determination shall be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g)11, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Sections 280G and 4999 of the Code, . Executive and other applicable legal authority. The the Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g)11. If a reduction in Payments is necessary so that no portion of the Payments is subject to the excise tax under Section 4999 of the Code, the Payments shall be reduced in the following order: (i) cash severance payments, (ii) the acceleration of vesting of equity awards, and (iii) the Continued Benefits. Reduction in either cash payments or equity compensation benefits shall be made pro rata between and among benefits that are subject to Section 409A and benefits that are exempt from Section 409A. If this Section 11 is applied to reduce an amount payable to Executive, and the Internal Revenue Service successfully asserts that, despite the reduction, Executive has nonetheless received payments which are in excess of the maximum amount that could have been paid to him without being subjected to any excise tax, then, unless it would be unlawful for the Company shall bear make such a loan or similar extension of credit to Executive, Executive may repay such excess amount to the cost Company though such amount constitutes a loan to Executive made at the date of all fees payment of such excess amount, bearing interest at 100% of the Accountants charge applicable federal rate (as determined under section 1274(d) of the Code in connection with any calculations contemplated by this Section 6(grespect of such loan).
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Section 280G. In Notwithstanding anything to the event contrary contained in this Agreement, to the extent that any paymentsof the payments and benefits provided for under this Agreement or any other agreement or arrangement between Executive and the Company (collectively, distributions, benefits or entitlements of any type payable to Employee (the “CIC BenefitsPayments”) (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph Section 11, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s CIC Benefits the Payments shall be reduced payable either (i) in full or (ii) as to such lesser amount (the “Reduced Amount”) that which would result in no portion of such benefits Payments being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of a nationally recognized accounting firm selected by the Company prior to a Change of Control (the “Accountants”), that without such reduction Employee would be entitled to receive and retain, on a net after excise tax basis (including, without limitation, any excise taxes payable 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 Executive’s receipt on an amount that is greater than the amount, on a net after after-tax basis, that Employee would be entitled to retain upon receipt of the Reduced Amountgreatest amount of economic benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless Executive and the Company and Employee otherwise agree in writing, any determination required under this Section 6(g) 11 shall be made in writing in good faith by the Company’s independent public accountants (the “Accountants. In the event of a reduction of benefits hereunder”), benefits whose reasonable determination shall be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion of the CIC Benefits that are payable in cash under Section 6(d)(ii) and 6(d)(iii) and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind)Company for all purposes. For purposes of making the calculations required by this Section 6(g)11, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Sections 280G and 4999 of the Code, . Executive and other applicable legal authority. The the Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require request in order to make a determination under this Section 6(g)11. If a reduction in Payments is necessary so that no portion of the Payments is subject to the excise tax under Section 4999 of the Code, reduction shall occur in the manner that results in the greatest economic benefit to Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. If this Section 11 is applied to reduce an amount payable to Executive, and the Internal Revenue Service successfully asserts that, despite the reduction, Executive has nonetheless received payments which are in excess of the maximum amount that could have been paid to him without being subjected to any excise tax, then, unless it would be unlawful for the Company shall bear make such a loan or similar extension of credit to Executive, Executive may repay such excess amount to the cost Company though such amount constitutes a loan to Executive made at the date of all fees payment of such excess amount, bearing interest at 120% of the Accountants charge applicable federal rate (as determined under section 1274(d) of the Code in connection with any calculations contemplated by this Section 6(grespect of such loan).
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