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Common use of Section 280G Clause in Contracts

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 18 contracts

Samples: Restricted Stock Unit Award Agreement (XPO, Inc.), Promotion Restricted Stock Unit Award Agreement (XPO, Inc.), Restricted Stock Unit Award Agreement (XPO, Inc.)

Section 280G. Notwithstanding anything contained in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementcontrary, in the event that any paymentsthe payments and benefits provided pursuant to this Agreement, distributions, together with all other payments and benefits received or entitlements of any type payable to you be received by Executive (“CIC BenefitsPayments) (i) ), constitute “parachute payments” within the meaning of Code Section 280G of the CodeG, and (ii) and, but for this paragraph Section 4, would be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits the Payments shall be reduced made to Executive either (i) in full or (ii) as to such lesser amount (the “Reduced Amount”) that as 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 the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the a Accounting FirmReduced Payment”), that without such reduction you would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 whichever of the Code)foregoing amounts, taking into account applicable federal, state and local income taxes and the Excise Tax, results in Executive’s receipt on an amount that is greater than the amount, on a net after after-tax basis, that you would be entitled to retain upon receipt of the greatest amount of benefits, notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. If a Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required Payment is to be made under this Section 17 shall section, reduction of Payments will occur in the following order: reduction of cash payments, then cancellation of equity-based payments and accelerated vesting of equity awards, and then reduction of employee benefits. If accelerated vesting of equity awards is to be made reduced, such acceleration of vesting will be cancelled in writing in good faith by the Accounting Firmreverse order of the date of grant. In the event of a that cash payments or other benefits are reduced, such reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefits, in each case, occur in reverse order beginning with the payments or and benefits which are to be paid furthest away in time. All determinations required to be made under this Section 4 (including whether any of the furthest in Payments are parachute payments and whether to make a Reduced Payment) will be made by an independent accounting firm selected by the futureCompany. For purposes of making the calculations required by this Section 17section, the Accounting Firm accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonablereasonably, good faith interpretations concerning the application of the Code, Code Sections 280G and other applicable legal authority4999. The Company and you shall furnish to will bear the Accounting Firm such information and documents as costs that the Accounting Firm accounting firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges incur in connection with any the calculations contemplated by this Section 174. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to The accounting firm’s determination will be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you binding on both Executive and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsabsent manifest error.

Appears in 17 contracts

Samples: Change in Control and Severance Agreement (Hims & Hers Health, Inc.), Severance and Change in Control Agreement (Coupa Software Inc), Severance and Change in Control Agreement (Coupa Software Inc)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, benefits or entitlements of any type payable or provided by AGNC, the Company or any of their subsidiaries to you the Executive, whether or not payable in connection with this Agreement or upon a termination of employment (“CIC BenefitsPayments) ), (i) constitute “parachute payments” within the meaning of Section 280G of the CodeG, and (ii) but for this paragraph 22 would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits the Payments shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits the Payments being subject to the Excise Tax; provided provided, however, that such amounts Payments shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other a nationally recognized certified public accounting firm as may be designated selected by the Company Board in good faith (the “Accounting FirmAccountants), ) determines that without such reduction you reduction, the 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, federal, state and local income taxes, social security and Medicare taxes and all other applicable taxes, determined by applying the highest marginal rate under Section 1 of the Code and under state and local tax laws which applied (or is likely to apply) to the Executive’s taxable income for the tax year in which the transaction which causes the application of Section 280G occurs, or such other rate(s) as the Accountants determine to be likely to apply to the Executive in the relevant tax year(s) in which any of the Payments are expected to be made), an amount that is greater than the amount, on a net after after-tax basis, that you the Executive would be entitled to retain upon receipt of the Reduced Amount. Unless the Company Board and you the Executive otherwise agree in writing, any determination required under this Section 17 paragraph 22 shall be made in writing in good faith by the Accounting FirmAccountants in a timely manner and shall be binding on the parties absent manifest error. In the event of a reduction of benefits Payments hereunder, benefits the Payments shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. order determined by the Accountants that results in the greatest economic benefit to the Executive in a manner that would not result in subjecting the Executive to additional taxation under Section 409A. For purposes of making the calculations required by this Section 17paragraph 22, the Accounting Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, Code and other applicable legal authority. The Company Board and you the Executive shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require in order to make a determination under this Section 17paragraph 22, and the Company shall bear the cost of all fees charged by the Accounting Firm charges Accountants in connection with any calculations contemplated by this Section 17paragraph 22. In connection with making determinations under this Section 17To the extent requested by the Executive, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate with the Executive in good faith in valuing, and the valuation Accountants shall value, services to be provided by the Executive (including the Executive refraining from performing services pursuant to a covenant not to compete) before, on or after the date of any the transaction which causes the application of Section 280G such servicesthat Payments in respect of such services may be considered to be “reasonable compensation” within the meaning of Section 280G. Notwithstanding the foregoing, including any non-competition provisions.if the transaction which causes the application of Section 280G occurs at a time during which Section 2(a)(i) of Q&A-6 of Treasury Regulation Section 1.280G would apply to the Executive, upon the request of the Executive, the Company shall use reasonable efforts to obtain the vote of equity holders described in Q&A-7 of Treasury Regulation Section 1.280G.

Appears in 13 contracts

Samples: Employment Agreement (AGNC Investment Corp.), Employment Agreement (AGNC Investment Corp.), Employment Agreement (AGNC Investment Corp.)

Section 280G. Notwithstanding anything in If any payment or benefit that the Executive may receive following a change of control of either of the Companies or any of their Affiliates, the Executive’s termination of employment, or otherwise, whether or not payable or provided under this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company determined under (the “Accounting Firm”A) and (B), that without such reduction you 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 you 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; cancellation of accelerated vesting of outstanding equity awards; and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firmreduction of employee benefits. 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 under this Award Agreement and then by reducing or eliminating the portion date of grant of the CIC Benefits that are payable in cash Executive’s outstanding equity awards. All calculations and then determinations made pursuant this Section 5(f) will be made by reducing an independent accounting or eliminating consulting firm or independent tax counsel appointed by the non-cash portion of Companies (the CIC Benefits, in each case, in reverse order beginning with payments or benefits which are to “Tax Counsel”) whose determinations shall be paid conclusive and binding on the furthest in Companies and the futureExecutive for all purposes. For purposes of making the calculations and determinations required by this Section 175(f), the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 12 contracts

Samples: Employment Agreement (Duckhorn Portfolio, Inc.), Employment Agreement (Duckhorn Portfolio, Inc.), Employment Agreement (Duckhorn Portfolio, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement If any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the contrary and regardless terms of whether this Award Agreement has or otherwise expired pursuant to or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements by reason of any type payable to you other agreement, policy, plan, program or arrangement or the lapse or termination of any restriction on or the vesting or exercisability of any payment or benefit (each a CIC BenefitsPayment) (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 (or any successor provision thereto) or to any similar tax imposed by state or local law (such tax or taxes are hereafter collectively referred to as the “Excise Tax”), then your CIC Benefits the aggregate amount of Payments payable to Executive shall be reduced to such lesser the aggregate amount of Payments that may be made to Executive without incurring an excise tax (the “Reduced Safe-Harbor Amount”) in accordance with the immediately following sentence; provided that would result in no portion such reduction shall only be imposed if the aggregate after-tax value of the Payments retained by Executive (after giving effect to such benefits being subject reduction) is equal to or greater than the aggregate after-tax value (after giving effect to the Excise Tax; provided that ) of the Payments to Executive without any such amounts shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without reduction. Any such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. In the event of a reduction of benefits hereunderfollowing order: (i) first, benefits any future cash payments (if any) shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in (if necessary, to zero); (ii) second, any current cash and then by reducing or eliminating the payments shall be reduced (if necessary, to zero); (iii) third, all non-cash portion of the CIC Benefitspayments (other than equity or equity derivative related payments) shall be reduced (if necessary, in each caseto zero); and (iv) fourth, in reverse order beginning with all equity or equity derivative payments or benefits which are shall be reduced. The determinations to be made with respect to this Paragraph shall be made by Company’s independent accountants, which shall be paid by Company for the furthest in the futureservices to be provided hereunder. For purposes of making the calculations required by this Section 17Paragraph, the Accounting Firm accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 and make reasonable assumptions regarding Executive’s marginal tax rate in effect for such parachute payments, including the Code, effect of the deductibility of state and other applicable legal authoritylocal taxes on such marginal tax rate. The Executive and Company and you shall furnish to the Accounting Firm accountants such information and documents as the Accounting Firm accountants may reasonably require request in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsParagraph.

Appears in 11 contracts

Samples: Executive Employment Agreement (Mastech Digital, Inc.), Executive Employment Agreement (Mastech Digital, Inc.), Executive Employment Agreement (Mastech Digital, Inc.)

Section 280G. (i) Notwithstanding anything contained in this Award Agreement to the contrary contrary, to the extent that the payments and regardless of whether benefits provided under this Award Agreement has otherwise expired and benefits provided to, or terminatedfor the benefit of, unless otherwise provided in your Employment Agreement, in Employee under any other Company plan or agreement (such payments or benefits are collectively referred to as the event that any payments, distributions, benefits or entitlements of any type payable to you (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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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), an amount the Benefits shall be reduced (but not below zero) if and to the extent that is greater than a reduction in the Benefits would result in Employee retaining a larger amount, on a net after an after-tax basisbasis (taking into account federal, that you would be entitled to retain upon receipt state and local income taxes and the Excise Tax), than if Employee received all of the Reduced Benefits (such reduced amount is referred to hereinafter as the “Limited Benefit Amount”). Unless Employee shall have given prior written notice specifying a different order to the Company and you otherwise agree in writingto effectuate the Limited Benefit Amount, any determination required under this such notice consistent with the requirements of Section 17 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Company shall be made in writing in good faith by reduce or eliminate the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced Benefits by first reducing or eliminating the portion of the CIC Benefits that amounts which are payable under this Award Agreement and from any cash severance, then from any payment in respect of an equity award that is not covered by reducing Treas. Reg. Section 1.280G-1 Q/A-24(b) or eliminating the portion (c), then from any payment in respect of the CIC Benefits an equity award that are payable in cash and then is covered by reducing or eliminating the non-cash portion of the CIC BenefitsTreas. Reg. Section 1.280G-1 Q/A-24(c), in each case, case in reverse order beginning with payments or benefits which are to be paid the furthest farthest in time from the futureDetermination (as defined below). For purposes Any notice given by Employee pursuant to the preceding sentence shall take precedence over the provisions of making any other plan, arrangement or agreement governing Employee’s rights and entitlements to any benefits or compensation. (ii) A determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and the amount of such Limited Benefit Amount 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 and acceptable to Employee (the “Firm”) at the Company’s expense. The Firm shall provide its determination (the “Determination”), together with detailed supporting calculations required by this Section 17, and documentation to the Accounting Firm may make reasonable assumptions Company and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application Employee within ten (10) business days of the Codedate of termination of Employee’s employment, and if applicable, or such other applicable legal authority. The Company and you shall furnish to the Accounting Firm such information and documents time as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and requested by the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsEmployee.

Appears in 10 contracts

Samples: Employment Agreement (Priveterra Acquisition Corp.), Executive Employment Agreement (Priveterra Acquisition Corp.), Employment Agreement (AEON Biopharma, Inc.)

Section 280G. Notwithstanding anything (i) Anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementnotwithstanding, in the event the Accounting Firm (as defined below) shall determine that any payments, distributions, benefits or entitlements receipt of any type payable to you all Payments (“CIC Benefits”as defined below) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would be subject Executive to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled Accounting Firm shall determine whether to retain upon receipt reduce any of the Reduced Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, Executive shall receive all Agreement Payments to which Executive is entitled hereunder. (ii) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof. Unless All determinations made by the Accounting Firm under this Section 4(i) shall be binding upon the Company and you otherwise agree in writing, any determination required under this Section 17 Executive and shall be made as soon as reasonably practicable and in no event later than thirty (30) days following the date of termination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If a reduction in the Payments is necessary so that the Parachute Value of all Payments equals the Safe Harbor Amount and none of the Payments constitutes a “deferral of compensation” within the meaning of and subject to Section 409A (“Nonqualified Deferred Compensation”), then the reduction shall occur in the manner Executive elects in writing in good faith prior to the date of payment. If any Payment constitutes Nonqualified Deferred Compensation, then the Payments to be reduced will be determined by the Accounting FirmFirm in a manner that enables Executive to retain the greatest aggregate economic benefit as of the day following the Release effective date, and to the extent the economic benefit of Payments is determined to be equivalent, the Payments will be reduced in the reverse order of when they are scheduled to be paid (and, in the case of Payments of equity securities, transferable). In All fees and expenses of the event Accounting Firm shall be borne solely by the Company. (iii) As a result of a reduction the uncertainty in the application of benefits Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, benefits shall be reduced it is possible that amounts will have been paid or distributed by first reducing the Company to or eliminating for the portion benefit of Executive pursuant to this Agreement that should not have been so paid or distributed (“Overpayment”) or that additional amounts which will have not been paid or distributed by the CIC Benefits that are payable under Company to or for the benefit of Executive pursuant to this Award Agreement and then by reducing could have been so paid or eliminating the portion of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitsdistributed (“Underpayment”), in each case, in reverse order beginning consistent with payments the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the actual assertion of a deficiency by the Internal Revenue Service against either the Company or benefits which are to be paid the furthest in the future. For purposes of making the calculations required by this Section 17, Executive that the Accounting Firm may make reasonable assumptions believes has a high probability of success, determines that an Overpayment has been made, Executive shall promptly (and approximations concerning applicable taxes in no event later than sixty (60) days following the date on which the Overpayment is determined) pay any such Overpayment to the Company; provided, however, that no amount shall be payable by Executive to the Company if and may rely to the extent such payment would not either reduce the amount on reasonable, good faith interpretations concerning the application which Executive is subject to tax under Sections 1 and 4999 of the Code, and other applicable legal authorityCode or generate a refund of such taxes. The Company and you shall furnish to If the Accounting Firm Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such information Underpayment shall be paid promptly (and documents as in no event later than sixty (60) days following the Accounting Firm may reasonably require in order date on which the Underpayment is determined) by the Company to make a determination under this Section 17or for the benefit of Executive. (iv) To the extent requested by Executive, and the Company shall bear the cost of all fees the Accounting Firm charges cooperate with Executive in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17good faith in valuing, and the Accounting Firm shall take into account the value of any reasonable compensation for of, services provided or to be rendered provided by you before Executive (including without limitation Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that set forth in Section 6 of this Agreement) before, on or after the Change date of Control, including any non-competition provisions that may apply to you and a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the regulations under Section 280G of the Code in accordance with Q&A-5(a) of the regulations under Section 280G of the Code. (v) Section 4(i) definitions. The following terms shall cooperate in have the valuation following meanings for purposes of any such services, including any non-competition provisions.this Section 4(i):

Appears in 5 contracts

Samples: Employment Agreement (Globe Specialty Metals Inc), Employment Agreement (Globe Specialty Metals Inc), Employment Agreement (Globe Specialty Metals Inc)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, benefits or entitlements of any type payable to you Employee (the CIC BenefitsTotal Payments”) would (i) constitute “parachute payments” within the meaning of Section 280G of the Code, 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 your 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 Employee’s receipt on an after-tax basis of the greatest amount of the Total Payments, notwithstanding that such amounts shall not be so reduced if all or some portion of the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as Total Payments may be designated by subject to the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced AmountExcise Tax. Unless the Company and you Employee otherwise agree in writing, any determination required under this Section 17 14 shall be made in writing in good faith based on the advice of a nationally recognized accounting firm selected by the Accounting FirmCompany (with approval of Employee) (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 this Award Agreement Section 6 and then by reducing or eliminating the portion of the CIC Benefits any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash 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 futurekind). For purposes of making the calculations required by this Section 1714, the Accounting Firm 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 you Employee shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require in order to make a determination under this Section 1714, and the Company shall bear the cost of all fees the Accounting Firm charges Accountants charge in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions14.

Appears in 5 contracts

Samples: Employment Agreement (Globalscape Inc), Employment Agreement (Globalscape Inc), Employment Agreement (Globalscape Inc)

Section 280G. Notwithstanding anything in any other provisions of this Award Agreement to or any other agreement between the contrary Company and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementthe Employee, in the event that any paymentspayment or benefit received or to be received by the Employee in connection with a Change in Control or the termination of the Employee's employment (whether pursuant to the terms of this Agreement or any other plan, distributionsarrangement or agreement with the Company or any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits, including the severance benefits provided hereunder, being hereinafter called "Total Payments") would not be deductible (in whole or entitlements part), by the Company, an affiliate or Person making such payment or providing such benefit 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 portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement), the benefits provided hereunder shall be reduced (if necessary, to zero); provided, however, that, notwithstanding the terms of any type other plan or agreement, the Employee may elect to have the benefits payable under any other plan or agreement reduced (or eliminated) prior to you any reduction of the benefits payable under this Agreement, which may include, in the case of the Executive Deferred Compensation Agreement, an election to reduce the Employee's Compensation Period under the Executive Deferred Compensation Agreement (“CIC Benefits”) without increasing the amount determined under Section 1.1 of the Executive Deferred Compensation Agreement as Employee's Monthly Deferred Compensation Benefit). (i) For purposes of this limitation in the event the Company asserts that the limitation would apply, (a) no portion of the Total Payments the receipt or enjoyment of which the Employee shall have waived at such time and in such manner as not to constitute “parachute payments” a "payment" within the meaning of Section section 280G(b) of the Code shall be taken into account, (b) no portion of the Total Payments shall be taken into account that, in the opinion of tax counsel ("Tax Counsel") selected by the Employee and reasonably accepted by the Company, does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (c) 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 clauses (a) or (b)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions by reason of section 280G of the Code, in the opinion of Tax Counsel, and (d) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined in accordance with the principles of sections 280G(d)(3) and (4) of the Code. (ii) but for this paragraph would be subject If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the excise tax imposed by Section 4999 good faith of the Code (Employee and the “Excise Tax”Company in applying the terms of this Section 6(F), then your CIC Benefits shall be reduced the Total Payments paid to such lesser or for the Employee's benefit are in an amount (the “Reduced Amount”) that would result in any portion of such Total Payments being subject to the Excise Tax, then, if such repayment would result in (a) no portion of the remaining Total Payments being subject to the Excise Tax and (b) a dollar-for-dollar reduction in the Employee's taxable income and wages for purposes of federal, state and local income and employment taxes, the Employee shall have an obligation to pay the Company upon demand an amount equal to the sum of (x) the excess of the Total Payments paid to or for the Employee's benefit over the Total Payments that could have been paid to or for the Employee's benefit without any portion of such benefits Total Payments being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based and (y) interest on the advice amount set forth in clause (x) of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by this sentence at the Company (the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 rate provided in section 1274(b)(2)(B) of the Code), an amount that is greater than Code from the amount, on a net after tax basis, that you would be entitled to retain upon date of the Employee's receipt of such excess until the Reduced Amount. Unless date of such payment. (iii) By execution and delivery of this Agreement, the Company and you otherwise agree in writing, any determination required under this provisions of Section 17 shall be made in writing in good faith by the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion 10.4 of the CIC Benefits that Executive Deferred Compensation Agreement are payable under this Award Agreement hereby superseded and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash such section is hereby declared null 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. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsvoid.

Appears in 4 contracts

Samples: Severance Agreement (PLM International Inc), Severance Agreement (PLM International Inc), Severance Agreement (PLM International Inc)

Section 280G. Notwithstanding anything (a) Anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementnotwithstanding, 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 you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm shall determine whether some amount of Agreement Payments meets the definition of “Reduced Amount.” If the Accounting Firm determines that there is a Reduced Amount, then the aggregate Agreement Payments shall be reduced to such Reduced Amount. (b) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced to the Reduced Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof, and the Executive may make reasonable assumptions then elect, in his or her sole discretion, which and approximations concerning applicable taxes and may rely on reasonablehow much of the Agreement Payments shall be eliminated or reduced (as long as after such election the Present Value of the aggregate Agreement Payments equals the Reduced Amount); provided, good faith interpretations concerning that the application Executive shall not be permitted to elect to reduce any Agreement Payment that constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Code, and other applicable legal authorityshall advise the Company in writing of his or her election within ten days of his or her receipt of notice. The If no such election is made by the Executive within such ten day period, the Company shall reduce the Agreement Payments in the following order: (1) by reducing benefits payable pursuant to Section 5(a)(1)(B) of the Agreement and you shall furnish then (2) by reducing amounts payable pursuant to Section 5(a)(2) of the Agreement. All determinations made by the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, 8 shall be binding upon the Company and the Company Executive and shall bear be made within 60 days of the cost Executive’s Date of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17Termination. In connection with making determinations under this Section 178, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you the Executive before or after the Change of in Control, including any non-competition provisions that may apply to you the Executive and the Company shall cooperate in the valuation of 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 have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this 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 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; 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. (d) All fees and expenses of the Accounting Firm in implementing the provisions of this Section 8 shall be borne by the Company.

Appears in 4 contracts

Samples: Change in Control Employment Agreement (Wausau Paper Corp.), Change in Control Employment Agreement (Wausau Paper Corp.), Change in Control Employment Agreement (Wausau Paper Corp.)

Section 280G. Notwithstanding anything in this Award Agreement If the present value of your Severance Benefits, either alone or together with other payments which you have the right to receive from the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in Company (the event that any payments, distributions, benefits or entitlements of any type payable to you (CIC Benefits”) (i) ), would constitute a “parachute paymentspaymentwithin 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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writingagree, any determination required under this Section 17 section shall be made in writing in good faith by the Accounting FirmCompany’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 the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitspro rata, in each case, in reverse order beginning but with payments or benefits which are to be paid the furthest no change in the futuretime at which such Benefits shall be paid. For purposes of making the calculations required by this Section 17section, the Accounting Firm 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 you shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and the section. The Company shall bear all costs the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionssection.

Appears in 4 contracts

Samples: Employment Agreement (Prokidney Corp.), Employment Agreement (Prokidney Corp.), Employment Agreement (Prokidney Corp.)

Section 280G. Notwithstanding anything (a) If any payment or benefit (including payments and benefits pursuant to this Agreement) that the Executive would receive in this Award Agreement to connection with a transaction (the contrary and regardless of whether this Award Agreement has “Transaction”) from the Company or otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC BenefitsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this paragraph would sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits the Company shall cause to be reduced determined, before any amounts of the Transaction Payment are paid to such lesser amount (the “Reduced Amount”) that Executive, which of the following two alternative forms of payment would result in no the Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of such benefits being the Transaction Payment may be subject to the Excise Tax; provided : (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that such amounts shall not be so reduced if the Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company determinesshall cause to be taken into account the value of 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 Golden Parachute Tax Solutions LLCthe 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, or such other nationally recognized certified public accounting firm (x) the Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to the Executive as may determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment shall be designated by reduced pro rata. (b) Notwithstanding the foregoing, in the event that no stock of the Company is readily tradeable on an established securities market or otherwise (within the meaning of Section 280G of the Code) at the time of the Transaction, the Company shall cause a vote of shareholders to be held to approve the portion of the Transaction Payments that equals or exceeds three times (3x) the Executive’s “base amount” (within the meaning of Section 280G of the Code) (the “Accounting FirmExcess Parachute Payments)) in accordance with Treas. Reg. §1.280G-1, and the Executive shall cooperate with such vote of shareholders, including the execution of any required documentation subjecting the Executive’s entitlement to all Excess Parachute Payments to such shareholder vote. In the event that without such reduction you would the Company does not cause a vote of shareholder to be entitled held to receive and retainapprove all Excess Parachute Payments, on a net after tax basis the provisions set forth in Section 5.7(a) of this Agreement shall apply. (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 you would be entitled to retain upon receipt of the Reduced Amount. c) Unless the Executive and the Company and you otherwise agree in writing, any determination required under this Section 17 section shall be made in writing in good faith by the Accounting Firm. In Company’s independent public accountants (the event of a reduction of benefits hereunder“Accountants”), 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureCompany for all purposes. For purposes of making the calculations required by this Section 17section, the Accounting Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Accountants shall provide detailed supporting calculations to the Company and you the Executive as requested by the Company or the Executive. The Executive and the Company shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and the section. The Company shall bear all costs the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionssection.

Appears in 4 contracts

Samples: Employment Agreement (Dermavant Sciences LTD), Separation Agreement and General Release (Dermavant Sciences LTD), Employment Agreement (Dermavant Sciences LTD)

Section 280G. (a) Notwithstanding anything in any other provision of this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any paymentspayment or benefit received or to be received by Executive (whether pursuant to the terms of this Agreement or any other plan, distributions, arrangement or agreement) (all such payments and benefits or entitlements of any type payable being hereinafter referred to you (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 part), to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any other plan, arrangement or agreement, then your CIC Benefits such remaining Total Payments shall be reduced reduced, to such lesser amount (the “Reduced Amount”) extent necessary so that would result in no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such benefits being 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 after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive 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). (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; provided that such amounts (ii) no portion of the Total Payments shall not be so reduced if taken into account which, in the Company determineswritten opinion of an independent, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting FirmIndependent Advisors)) selected by the Company, that without such reduction you would be entitled to receive and retain, on 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 including by reason of Section 4999 280G(b)(4)(A) of the Code)) and, an amount that is greater than in calculating the amountExcise Tax, on a net after tax basis, that you would be entitled to retain upon receipt no portion of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 such Total Payments shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitstaken into account which, in each casethe opinion of Independent Advisors, in reverse order beginning with payments or benefits which are to be paid constitutes reasonable compensation for services actually rendered, within the furthest in the future. For purposes meaning of making the calculations required by this Section 17, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application 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; and other applicable legal authority. The Company and you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account (iii) the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate cash benefit or any deferred payment or benefit included in the valuation Total Payments shall be determined by the Independent Advisors in accordance with the principles of any such services, including any non-competition provisionsSections 280G(d)(3) and (4) of the Code.

Appears in 4 contracts

Samples: Employment Agreement (Kennedy-Wilson Holdings, Inc.), Employment Agreement (Kennedy-Wilson Holdings, Inc.), Employment Agreement (Kennedy-Wilson Holdings, Inc.)

Section 280G. Notwithstanding anything (a) If any payment or benefit (including payments and benefits pursuant to this Agreement) that the Executive would receive in this Award Agreement to connection with a Change of Control or other transaction (the contrary and regardless of whether this Award Agreement has “Transaction”) from the Company or otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC BenefitsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of 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 your CIC Benefits the Company shall cause to be reduced determined, before any amounts of the Transaction Payment are paid to such lesser amount (the “Reduced Amount”) that Executive, which of the following two alternative forms of payment would result in no the Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of such benefits being the Transaction Payment may be subject to the Excise Tax; provided : (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that such amounts shall not be so reduced if the Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company determinesshall cause to be taken into account the value of 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 Golden Parachute Tax Solutions LLCthe 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, or such other nationally recognized certified public accounting firm as may be designated by (x) the Company Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner (the “Accounting FirmReduction Method”) that results in the greatest economic benefit to the Executive as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment shall be reduced pro rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Transaction Payment being subject to taxes pursuant to Section 409A that without such reduction you would not otherwise be entitled subject to receive and retaintaxes pursuant to Section 409A, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, will be modified so as to avoid the imposition of taxes pursuant to Section 409A as follows: (A) as a first priority, the modification will preserve to the greatest extent possible, the greatest economic benefit for the Executive as determined on an after-tax basis; (B) as a net after tax basis (including, without limitationsecond priority, any excise taxes payable under amounts of the Transaction Payment that are contingent on future events (e.g., being terminated without Cause), will be reduced (or eliminated) before any amounts of the Transaction Payment that are not contingent on future events; and (C) as a third priority, any amounts of the Transaction Payment that are “deferred compensation” within the meaning of Section 4999 409A will be reduced (or eliminated) before any amounts of the Transaction Payment that are not deferred compensation within the meaning of Section 409A. (b) Notwithstanding the foregoing, in the event that no stock of the Parent is readily tradeable on an established securities market or otherwise (within the meaning of Section 280G of the Code), an amount that is greater than ) at the amount, on a net after tax basis, that you would be entitled to retain upon receipt time of the Reduced AmountChange of Control and to the extent allowable pursuant to Treas. Reg. §1.280G-1, the Parent shall cause a vote of shareholders to be held on the portion of the Transaction Payments that equals or exceeds three times (3x) the Executive’s “base amount” (within the meaning of Section 280G of the Code) (the “Excess Parachute Payments”) in accordance with Treas. Reg. §1.280G-1, and the Executive shall cooperate with such vote of shareholders, including the execution of any required documentation subjecting the Executive’s entitlement to all Excess Parachute Payments to such shareholder vote. In the event that the Parent does not cause a vote of shareholders to be held on all Excess Parachute Payments or the shareholders do not approve all Excess Parachute Payments, the provisions set forth in Section 5.7(a) of this Agreement shall apply. (c) Unless the Executive and the Company and you otherwise agree in writing, any determination required under this Section 17 section shall be made in writing in good faith by the Accounting Firm. In Company’s independent public accountants (the event of a reduction of benefits hereunder“Accountants”), 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureCompany for all purposes. For purposes of making the calculations required by this Section 17section, the Accounting Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Accountants shall provide detailed supporting calculations to the Company and you the Executive as requested by the Company or the Executive. The Executive and the Company shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and the section. The Company shall bear all costs the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionssection.

Appears in 3 contracts

Samples: Employment Agreement (Myovant Sciences Ltd.), Employment Agreement (Myovant Sciences Ltd.), Employment Agreement (Myovant Sciences Ltd.)

Section 280G. Notwithstanding anything If the Employee is a “disqualified individual,” as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”), then, notwithstanding any other provision of this Award Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into by the Employee with the Company (an “Other Agreement”), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to the Employee (including groups or classes of employees or beneficiaries of which the Employee is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for the Employee (a “Benefit Arrangement”), any right to exercise, vesting, payment or benefit to the Employee under this Agreement, any Other Agreement and/or any Benefit Arrangement shall be reduced or eliminated to the extent that such right to exercise, vesting, payment, or benefit, taking into account all other rights, payments, or benefits to or for the Employee under this Agreement, all Other Agreements, and all Benefit Arrangements, would cause any exercise, vesting, payment or benefit to the Employee under this Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC Benefits”) (i) constitute be considered a “parachute paymentspayment” within the meaning of Section 280G(b)(2) of the Code as then in effect (a “Parachute Payment”) if, as a result of receiving such Parachute Payment, the aggregate after-tax amounts received by the Employee from the Company under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that could be received by the Employee without causing any such payment or benefit to be considered a Parachute Payment. (i) Such reduction or elimination will be calculated so that the amount received by Employee that is subject to 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 your CIC Benefits shall will be reduced to such lesser an amount that is three times Employee’s “base amount” (the “Reduced Amount”defined in Section 280G(b)(3) 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the less one dollar. (ii) The Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. In the event of a accomplish such reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating any cash payments (with the portion of payments to be made furthest in the CIC Benefits that are payable under this Award Agreement and future being reduced first), then by reducing or eliminating the portion any accelerated vesting of the CIC Benefits that are payable in cash and performance awards, then by reducing or eliminating any accelerated vesting of options or stock appreciation rights, then by reducing or eliminating any accelerated vesting of restricted stock or stock units, then by reducing or eliminating any other remaining Parachute Payments. (iii) Notwithstanding the non-cash portion foregoing, if any amount payable to the Employee could be deemed a Parachute Payment, the Company will use its best efforts to obtain shareholder approval of the CIC Benefitspayments to Employee under this Agreement, any Other Agreement or any Benefit Arrangement that is described in each case, in reverse order beginning with payments or benefits which are to be paid the furthest in the future. For purposes of making the calculations required by this Section 17, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application 280G(5)(B) of the Code, and other Code in a manner intended to satisfy all applicable legal authority. The Company and you shall furnish to requirements of Section 280G(b)(5)(B) of the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, Code and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of ControlTreasury Regulations thereunder, including any non-competition provisions that may apply to you and Q&A-7 of Section 1.280G-1 of the Company shall cooperate in the valuation of any such services, including any non-competition provisionsTreasury Regulations.

Appears in 3 contracts

Samples: Employment Agreement (Freehold Properties, Inc.), Employment Agreement (Freehold Properties, Inc.), Employment Agreement (Freehold Properties, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement to (a) The Executive shall bear all expense of, and be solely responsible for, any Excise Tax (as defined below) imposed on the contrary and regardless of whether this Award Agreement has otherwise expired or terminatedExecutive; provided, unless otherwise provided in your Employment Agreementhowever, in the event that any paymentsthe Accounting Firm (as defined below) determines that receipt of all payments or distributions in the nature of compensation to or for the benefit of the Executive, distributions, benefits whether paid or entitlements of any type payable pursuant to you this Agreement or otherwise (the CIC BenefitsPayments”) would subject the Executive to tax under Section 4999 of the Code, then, after taking into account any reduction in the Payments provided by reason of Section 280G of the Code in any other plan, arrangement or agreement, the Accounting Firm shall determine whether the Payments shall be reduced to the Reduced Amount (as defined below). The Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Net After-Tax Receipt (as defined below) of unreduced aggregate Payments would be equal to or less than one-hundred percent (100%) of the Net After-Tax Receipt of the Reduced Amount. The provisions of this Section 9 shall supersede and control any conflicting Payments adjustment language in the Parachute Limitations provisions in Section 17 of the Four Corners Property Trust, Inc. 2015 Omnibus Incentive Plan, as amended from time to time, or any similar parachute limitations language in any other plan or agreement applicable to Executive. (b) If the Accounting Firm determines that aggregate Payments should be reduced to the Reduced Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section shall be binding upon the Company and the Executive and shall be made as soon as reasonably practicable and in no event later than five (5) business days following the effective date of the applicable Change in Control, or such later date on which there has been a Payment. The reduction of the Payments, if applicable, shall be made in the following order: (i) reduction of cash payments, which will occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to be reduced; (ii) cancellation of accelerated vesting of equity awards, which will occur in the reverse order of the date of grant for such stock awards (i.e., the vesting of the most recently granted stock awards will be reduced first); and (iii) reduction of other employee benefits, which will occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced; provided, however, that no reduction of a Payment that is nonqualified deferred compensation subject to Section 409A of the Code shall be made to the extent that such reduction would result in any other payment or benefit being deemed a substitute (within the meaning of Section 1.409A-3(f) of the Treasury Regulations) for the forfeited amount by reason of such other payment or benefit having a different time or form of payment. With respect to each of clauses (i)-(iii), in the case of any Payments that constitute deferred compensation subject to Section 409A, the reduction will occur first as to amounts that are not deferred. If two or more of the same type of awards are granted on the same date, each award will have their acceleration of vesting reduced on a pro-rata basis. In no event will the Executive have any discretion with respect to the ordering of Payment reductions. All fees and expenses of the Accounting Firm in implementing the provisions of this Section shall be borne by the Company. (c) 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 the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a parachute paymentspayment” within the meaning of Section 280G 280G(b) of the Code shall be taken into account, (ii) no portion of the Payments shall be taken into account which, in the written opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Payments shall be taken into account which, in the opinion of Accounting Firm, constitutes 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 (the “Excise Tax”), then your CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”as defined in Section 280G(b)(3) 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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)) allocable to such reasonable compensation, an amount that is greater than and (iii) the amount, on a net after tax basis, that you would value of any non-cash benefit or any deferred payment or benefit included in the Payments shall be entitled to retain upon receipt determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Reduced Amount. Unless the Code. (d) The Company and you otherwise agree the Executive shall provide the Accounting Firm access to copies of any books, records, and documents in writing, any determination required under this Section 17 shall be made in writing in good faith their possession as reasonably requested by the Accounting Firm. In , and otherwise cooperate with the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating Accounting Firm in connection with the portion preparation and issuance of the CIC Benefits that are payable under determinations and calculations contemplated by this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureSection 9. For purposes of making the calculations required by this Section 179, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999. (e) For purposes of this Agreement, the Codeterm “Accounting Firm” shall mean a nationally recognized accounting firm, or actuarial, benefits or compensation consulting firm (with experience in performing the calculations regarding the applicability of Code Section 280G and other applicable legal authority. The Company and you shall furnish to of the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this tax imposed by Code Section 17, and 4999) selected by the Company shall bear the cost of all fees the Accounting Firm charges immediately prior to a Change in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 3 contracts

Samples: Employment Agreement (Four Corners Property Trust, Inc.), Employment Agreement (Four Corners Property Trust, Inc.), Employment Agreement (Four Corners Property Trust, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in (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 you (“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 your CIC Benefits ) the amount of excess parachute payments which would otherwise be payable to Executive or for Executive’s 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you Executive would be entitled to retain upon receipt of the Reduced Amount. Unless . (b) If the Company and you otherwise agree determination made pursuant to Section 9(a) results in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits payments that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 would otherwise be paid the furthest in the future. For purposes of making the calculations required by this Section 17, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning to Executive except for the application of Section 9(a), such reduction in payments due under this Agreement shall be first 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 Code. Within ten days following such determination, and other applicable legal authority. The Company and you shall furnish to but not later than thirty days following the Accounting Firm such information and documents as date of the Accounting Firm may reasonably require in order to make a determination event under this Section 17280G(b)(2)(A)(i), and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations pay or distribute to Executive or for Executive’s benefit such amounts as are then due to Executive under this Section 17, the Accounting Firm Agreement and shall take into account the value of any reasonable compensation promptly pay or distribute to Executive or for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate his benefit in the valuation of any future such services, including any non-competition provisionsamounts as become due to Executive under this Agreement.

Appears in 3 contracts

Samples: Change in Control Agreement, Change in Control Agreement (Office Depot Inc), Change in Control Agreement (Office Depot Inc)

Section 280G. Notwithstanding anything in this Award Agreement herein to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementcontrary, in the event that any paymentspayments or benefits paid or payable hereunder or otherwise, distributionsincluding, benefits or entitlements of any type payable but not limited to, under the Prior Employment Agreement, to you the Executive (the CIC BenefitsPayments”) would (ia) constitute “parachute payments” within the meaning of Section 280G of the Code, and (iib) but for this paragraph sentence, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits shall such Payments will be reduced to be equal to the Reduced Amount if and to the extent that a reduction in the Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income and employment taxes and the Excise Tax), than if the Executive received the entire amount of such lesser amount (the Payments in accordance with their existing terms. The “Reduced Amount”) ” will be the largest portion of the Payments that would result in no portion of such benefits the Payments being subject to the Excise Tax; provided that . If there is a reduction of payments to the Reduced Amount under this Section 7, such amounts shall not be so reduced reduction will occur in the following order: (i) reduction of the Second Retention Bonus (if and to the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the extent considered a Accounting Firmparachute payment”), that without such ; (ii) reduction you 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 CodeFirst Retention Bonus (if and to the extent considered a “parachute payment”); (iii) reduction of cash severance benefits and other cash “parachute payments”, an amount that is greater than in the amount, on a net after tax basis, that you would be entitled to retain upon receipt reverse order of the Reduced Amountdate such payments are due. The Executive may not exercise any discretion with respect to the ordering of any reductions of payments or benefits under this Section 7. Unless the Company and you Parties otherwise agree in writing, any determination required under this Section 17 7 shall be made in writing in good faith by the Accounting Firm. In Company’s or an affiliate’s independent public accountants (the event of a reduction of benefits hereunder“Accountants”), 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureCompany for all purposes. For purposes of making the calculations required by this Section 177, the Accounting Firm 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 authoritytaxes. The Company and you Parties shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and the 7. The Company shall bear all costs incurred for and by the cost of all fees the Accounting Firm charges Accountants in connection with any calculations or determinations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions7.

Appears in 3 contracts

Samples: Employment Agreement, Employment Agreement (Intelligroup Inc), Employment Agreement (Intelligroup Inc)

Section 280G. Notwithstanding anything (a) Anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementnotwithstanding, 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 you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm shall determine whether some amount of Agreement Payments meets the definition of “Reduced Amount.” If the Accounting Firm determines that there is a Reduced Amount, then the aggregate Agreement Payments shall be reduced to such Reduced Amount. (b) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced to the Reduced Amount, the Bank or the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof, and the Executive may make reasonable assumptions then elect, in the Executive’s sole discretion, which and approximations concerning applicable taxes and may rely on reasonablehow much of the Agreement Payments shall be eliminated or reduced (as long as after such election the Present Value of the aggregate Agreement Payments equals the Reduced Amount); provided, good faith interpretations concerning that the application Executive shall not be permitted to elect to reduce any Agreement Payment that constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Code, and other applicable legal authorityshall advise the Bank or the Company in writing of the Executive’s election within ten days of the Executive’s receipt of notice. The If no such election is made by the Executive within such ten-day period, the Bank or the Company shall reduce the Agreement Payments in the following order: (1) by reducing benefits payable pursuant to Section 5(a)(1)(B) of the Agreement and you shall furnish then (2) by reducing amounts payable pursuant to Section 5(a)(2) of the Agreement. All determinations made by the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 178 shall be binding upon the Bank, the Company and the Company Executive and shall bear be made within 60 days of the cost Executive’s Date of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17Termination. In connection with making determinations under this Section 178, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you the Executive before or after the Change of Control, including any non-competition provisions that may apply to you the Executive and the Bank and the Company shall cooperate in the valuation of 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 Bank or 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 have not been paid or distributed by the Bank or the Company to or for the benefit of the Executive pursuant to this 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 Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Bank, 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 Bank or the Company to or for the benefit of the Executive shall be repaid by the Executive to the Bank or the Company (as applicable) 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 Bank or 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 Accounting Firm in implementing the provisions of this Section 8 shall be borne by the Bank or the Company, as applicable.

Appears in 3 contracts

Samples: Change of Control Employment Agreement (Suffolk Bancorp), Change of Control Employment Agreement (Suffolk Bancorp), Change of Control Employment Agreement (Suffolk Bancorp)

Section 280G. (a) Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementcontrary, 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 you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning shall determine whether some amount of Agreement Payments meets the application definition of the Code, and other applicable legal authority. The Company and you shall furnish to “Reduced Amount.” If the Accounting Firm determines that there is a Reduced Amount, then the aggregate Agreement Payments shall be reduced to such information and documents as Reduced Amount. (b) If the Accounting Firm may reasonably require in order determines that the aggregate Agreement Payments should be reduced to make the Reduced Amount, the Company or one of its subsidiaries shall promptly give the Executive notice to that effect and a determination under this Section 17copy of the detailed calculation thereof, and the Company shall bear reduce the cost Agreement Payments in the following order: (A) by reducing benefits payable pursuant to Section 5(a)(i)(B) of all fees the Agreement, then (B) by reducing amounts payable pursuant to Section 5(a)(i)(C) of the Agreement, and then (C) by reducing amounts payable pursuant to Section 5(a)(ii), beginning with payments that would be made last in time. All determinations made by the Accounting Firm charges in connection with any calculations contemplated by under this Section 178 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 178, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you the Executive before or after the Change of Control, including any non-competition provisions that may apply without limitation, the Executive’s agreeing to you refrain from performing services pursuant to a covenant not to compete or similar covenant, and the Company shall cooperate in the valuation of good faith in connection with any such servicesvaluations and reasonable compensation positions. Without limiting the generality of the foregoing, including for purposes of this provision, the Company agrees to allocate as consideration for the covenants set forth in Section 9 the maximum amount of compensation and benefits payable under Section 5(a) hereof reasonably allocable thereto so as to avoid, to the extent possible, subjecting any non-competition provisionsPayments to tax under Section 4999 of the Code. (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 have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this 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 Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against 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; 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 Accounting Firm in implementing the provisions of this Section 8 shall be borne by the Company.

Appears in 2 contracts

Samples: Employment Agreement (BNC Bancorp), Employment Agreement (BNC Bancorp)

Section 280G. Notwithstanding anything (a) If any payment or benefit (including payments and benefits pursuant to this Agreement) that the Executive would receive in this Award Agreement to connection with a transaction (the contrary and regardless of whether this Award Agreement has “Transaction”) from the Company or otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC BenefitsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this paragraph would sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits the Company shall cause to be reduced determined, before any amounts of the Transaction Payment are paid to such lesser amount (the “Reduced Amount”) that Executive, which of the following two alternative forms of payment would result in no the Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of such benefits being the Transaction Payment may be subject to the Excise Tax; provided that such amounts shall not be so reduced if : (1) payment in full of the Company determines, based on entire amount of the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company Transaction Payment (the a Accounting FirmFull Payment”), that without such reduction you would be entitled to receive and retain, on or (2) payment of only a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 part of the Code), an amount Transaction Payment so that is greater than the amount, on a net after tax basis, that you would be entitled to retain upon receipt Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futurePayment”). For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order determining whether to make a determination under this Section 17Full Payment or a Reduced Payment, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take cause to be taken into account the value of all applicable federal, state and local income and employment taxes and the 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, (x) the Executive shall have no rights to any reasonable compensation for services additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to the Executive as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment shall be rendered by you before reduced pro rata. (b) Notwithstanding the foregoing, in the event that no stock of the Company is readily tradeable on an established securities market or after otherwise (within the Change meaning of ControlSection 280G of the Code) at the time of the Transaction, including any non-competition provisions that may apply to you and the Company shall cooperate in cause a vote of shareholders to be held to approve the valuation portion of any such services, including any non-competition provisions.the Transaction Payments that equals or exceeds three times (3x) the Executive’s “base amount” (within the meaning of Section 280G of the Code) (the “Excess Parachute Payments”)

Appears in 2 contracts

Samples: Employment Agreement (Dermavant Sciences LTD), Employment Agreement (Dermavant Sciences LTD)

Section 280G. (i) Notwithstanding anything contained in this Award Agreement to the contrary contrary, to the extent that the payments and regardless of whether benefits provided under this Award Agreement has otherwise expired and benefits provided to, or terminatedfor the benefit of, unless otherwise provided in your Employment Agreement, in Employee under any other Company plan or agreement (such payments or benefits are collectively referred to as the event that any payments, distributions, benefits or entitlements of any type payable to you (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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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), an amount the Benefits shall be reduced (but not below zero) if and to the extent that is greater than a reduction in the Benefits would result in Employee retaining a larger amount, on a net after an after-tax basisbasis (taking into account federal, that you would be entitled to retain upon receipt state and local income taxes and the Excise Tax), than if Employee received all of the Reduced Benefits (such reduced amount is referred to hereinafter as the “Limited Benefit Amount”). Unless Employee shall have given prior written notice specifying a different order to the Company and you otherwise agree in writingto effectuate the Limited Benefit Amount, any determination required under this such notice consistent with the requirements of Section 17 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Company shall be made in writing in good faith by reduce or eliminate the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced Benefits by first reducing or eliminating the portion of the CIC Benefits that amounts which are payable under this Award Agreement and from any cash severance, then from any payment in respect of an equity award that is not covered by reducing Treas. Reg. Section 1.280G- 1 Q/A-24(b) or eliminating the portion (c), then from any payment in respect of the CIC Benefits an equity award that are payable in cash and then is covered by reducing or eliminating the non-cash portion of the CIC BenefitsTreas. Reg. Section 1.280G-1 Q/A-24(c), in each case, case in reverse order beginning with payments or benefits which are to be paid the furthest farthest in time from the futureDetermination (as defined below). For purposes Any notice given by Employee pursuant to the preceding sentence shall take precedence over the provisions of making any other plan, arrangement or agreement governing Employee’s rights and entitlements to any benefits or compensation. (ii) A determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and the amount of such Limited Benefit Amount 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 and acceptable to Employee (the “Firm”) at the Company’s expense. The Firm shall provide its determination (the “Determination”), together with detailed supporting calculations required by this Section 17, and documentation to the Accounting Firm may make reasonable assumptions Company and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application Employee within ten business days of the Codedate of termination of Employee’s employment, and if applicable, or such other applicable legal authority. The Company and you shall furnish to the Accounting Firm such information and documents time as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and requested by the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsEmployee.

Appears in 2 contracts

Samples: Employment Agreement (AEON Biopharma, Inc.), Employment Agreement (AEON Biopharma, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 19 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 1719, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 1718, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 1719. In connection with making determinations under this Section 1719, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 2 contracts

Samples: Performance Based Restricted Stock Unit Award Agreement (RXO, Inc.), Restricted Stock Unit Award Agreement (RXO, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC Benefits”) (ia) constitute “parachute payments” within the meaning of Section 280G of the Code, and (iib) but for this paragraph would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your 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 Golden Parachute Tax Solutions LLC, or such other a nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 11 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 1711, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 1711, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 1711. In connection with making determinations under this Section 1711, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 2 contracts

Samples: Restricted Stock Unit Award Agreement (GXO Logistics, Inc.), Performance Share Unit Award Agreement (GXO Logistics, Inc.)

Section 280G. Notwithstanding anything (a) If any payment or benefit (including payments and benefits pursuant to this Agreement) that the Executive would receive in this Award Agreement to connection with a transaction (the contrary and regardless of whether this Award Agreement has “Transaction”) from the Company or otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC BenefitsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this paragraph would sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits the Company shall cause to be reduced determined, before any amounts of the Transaction Payment are paid to such lesser amount (the “Reduced Amount”) that Executive, which of the following two alternative forms of payment would result in no the Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of such benefits being the Transaction Payment may be subject to the Excise Tax; provided : (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that such amounts shall not be so reduced if the Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company determinesshall cause to be taken into account the value of 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 Golden Parachute Tax Solutions LLCthe 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, or such other nationally recognized certified public accounting firm (x) the Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to the Executive as may determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment shall be designated by reduced pro rata. (b) Notwithstanding the foregoing, in the event that no stock of the Company is readily tradeable on an established securities market or otherwise (within the meaning of Section 280G of the Code) at the time of the Transaction, the Company shall cause a vote of shareholders to be held to approve the portion of the Transaction Payments that equals or exceeds three times (3x) the Executive’s “base amount” (within the meaning of Section 280G of the Code) (the “Accounting FirmExcess Parachute Payments)) in accordance with Treas. Reg. § 1.280G-1, and the Executive shall cooperate with such vote of shareholders, including the execution of any required documentation subjecting the Executive’s entitlement to all Excess Parachute Payments to such shareholder vote. In the event that without such reduction you would the Company does not cause a vote of shareholder to be entitled held to receive and retainapprove all Excess Parachute Payments, on a net after tax basis the provisions set forth in Section 5.7(a) of this Agreement shall apply. (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 you would be entitled to retain upon receipt of the Reduced Amount. c) Unless the Executive and the Company and you otherwise agree in writing, any determination required under this Section 17 section shall be made in writing in good faith by the Accounting Firm. In Company’s independent public accountants (the event of a reduction of benefits hereunder“Accountants”), 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureCompany for all purposes. For purposes of making the calculations required by this Section 17section, the Accounting Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Accountants shall provide detailed supporting calculations to the Company and you the Executive as requested by the Company or the Executive. The Executive and the Company shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and the section. The Company shall bear all costs the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionssection.

Appears in 2 contracts

Samples: Employment Agreement (Dermavant Sciences LTD), Employment Agreement (Dermavant Sciences LTD)

Section 280G. Notwithstanding anything contained in this Award Agreement Agreement, or in any other employment, severance or similar agreement between Executive and the Company to the contrary contrary, to the extent that the payments and regardless of whether benefits provided under this Award Agreement has otherwise expired and benefits provided to Executive, or terminatedfor Executive’s benefit, unless otherwise provided in your Employment Agreement, in under any other Company plan or agreement (such payments or benefits are collectively referred to as the event that any payments, distributions, benefits or entitlements of any type payable to you (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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 Internal Revenue Code of 1986, as amended (the “Code), an amount the Benefits shall be reduced (but not below zero) if and to the extent that is greater than a reduction in the Benefits would result in Executive retaining a larger amount, on a net after an after-tax basisbasis (taking into account federal, that you would be entitled to retain upon receipt state and local income taxes and the Excise Tax), than if Executive received all of the Reduced Benefits (such reduced amount is referred to hereinafter as the “Limited Benefit Amount”). Unless Executive shall have given prior written notice (to the extent such a notice does not result in any tax liabilities under Section 409A of the Code) specifying a different order to the Company and you otherwise agree in writingto effectuate the Limited Benefit Amount, any determination required under this Section 17 the Company shall be made in writing in good faith by reduce or eliminate the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced Benefits by first reducing or eliminating the portion those payments of the CIC Benefits that benefits which are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are not payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitspayments, in each case, case in reverse order beginning with payments or benefits which are to be paid the furthest farthest in time from the futureDetermination (as defined below). For purposes Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of making any other plan, arrangement or agreement governing Executive’s rights and entitlements to any benefits or compensation. A determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and the amount of such Limited Benefit Amount shall be made by Company’s independent public accountants or another certified public accounting firm of national reputation designated by the Company (the “Accounting Firm”) at the Company’s expense. The Accounting Firm shall provide its determination (the “Determination”), together with detailed supporting calculations required and documentation to Executive and the Company within five (5) days of the date of termination of Executive’s employment, if applicable, or such other time as requested by this Section 17Executive or the Company (provided Executive reasonably believes that any of the Benefits may be subject to the Excise Tax), and if the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonabledetermines that no Excise Tax is payable by Executive with respect to any Benefits, good faith interpretations concerning it shall furnish Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to any such Benefits. Unless Executive provides written notice to the application Company within ten (10) days of the Codedelivery of the Determination to Executive that Executive disputes such Determination, the Determination shall be binding, final and other applicable legal authority. The Company and you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, conclusive upon Executive and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsCompany.

Appears in 2 contracts

Samples: Severance Agreement (Cell Therapeutics Inc), Severance Agreement (Cell Therapeutics Inc)

Section 280G. Notwithstanding anything in this Award Agreement In the event it shall be determined that any payment or distribution by the Company or any of its affiliates to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the contrary and regardless terms of whether this Award Agreement has otherwise expired or terminatedotherwise) (the “Total Payments”), unless otherwise provided in your Employment is or will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), if the net after-tax benefit to Executive after reducing Executive’s Total Payments to the Safe Harbor Cap is greater than the net after-tax (including the Excise Tax) benefit to Executive without such reduction. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the cash payments made pursuant to Section 5(a)(ii) of this Agreement, then to the payment made pursuant to Section 5(a)(iii) of this Agreement, then to any payment made pursuant to Section 5(a)(iv) of this Agreement, then to any payment made pursuant to Section 5(a)(v) of this Agreement, and then to any other payment that triggers such Excise Tax in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC Benefits”) following order: (i) constitute reduction of cash payments; (ii) cancellation of accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant); (iii) cancellation of accelerated vesting of other equity awards (based on the reverse order of the date of grant); and (iv) reduction of any other payments due to Executive (with benefits or payments in any group having different payment terms being reduced on a pro-rata basis). All mathematical determinations, and all determinations as to whether any of the Total Payments are “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 your CIC Benefits that are required to be made under this paragraph, including determinations as to whether the Total Payments to Executive shall be reduced to the Safe Harbor Cap and the assumptions to be utilized in arriving at such lesser amount (determinations, shall be made at 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 Golden Parachute Tax Solutions LLC, or such other Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you would be entitled mutually acceptable 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsExecutive.

Appears in 2 contracts

Samples: Employment Agreement (Williams Industrial Services Group Inc.), Employment Agreement (Williams Industrial Services Group Inc.)

Section 280G. Notwithstanding anything (a) Anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementnotwithstanding, in the event that any paymentsthe Accounting Firm shall determine that receipt of all Payments would subject the Executive to tax under Code Section 4999, distributions, benefits or entitlements the Accounting Firm shall determine whether some amount of any type payable to you (Agreement Payments meets the definition of CIC Benefits”) (i) constitute “parachute paymentsReduced Amount.within If 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”)Accounting Firm determines that there is a Reduced Amount, then your CIC Benefits the aggregate Agreement Payments shall be reduced to such lesser amount (the “Reduced Amount. (b) If the Accounting Firm determines that would result in no portion of such benefits being subject the aggregate Agreement Payments should be reduced to the Excise TaxReduced Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof, and the Executive may then elect, in his or her sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the present value of the aggregate Agreement Payments equals the Reduced Amount); provided provided, that such amounts the Executive shall not be so reduced if permitted to elect to reduce any Agreement Payment that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A, and shall advise the Company determines, based on the advice in writing of Golden Parachute Tax Solutions LLC, his or her election within ten days of his or her receipt of notice. If no such other nationally recognized certified public accounting firm as may be designated election is made by the Executive within such ten day period, the Company shall reduce the Agreement Payments in the following order: (the 1) Agreement Payments which do not constitute Accounting Firm”)nonqualified deferred compensation subject to Code Section 409A shall be reduced first; and (2) all other Agreement Payments shall then be reduced, that without such reduction you would in each case as follows: (i) cash payments shall be entitled reduced before non-cash payments and (ii) payments to receive and retain, be made on a net after tax basis (including, without limitation, any excise taxes payable later payment date shall be reduced before payments to be made on an earlier payment date. All determinations made by the Accounting Firm under this Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that you would 11 shall be entitled to retain binding upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 the Executive and shall be made in writing in good faith by the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion within 60 days of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17Executive’s Separation from Service. In connection with making determinations under this Section 1712, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you the Executive before or after the Change of in Control, including any non-competition provisions that may apply to you the Executive and the Company shall cooperate in the valuation of any such services, including any non-competition provisions. (c) As a result of the uncertainty in the application of Code Section 4999 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 have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this 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 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 Code Section 7872(f)(2); 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 Code Section 1 and Code Section 4999 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 Code Section 7872(f)(2). (d) All fees and expenses of the Accounting Firm in implementing the provisions of this Section 11 shall be borne by the Company.

Appears in 2 contracts

Samples: Severance Agreement (Cliffs Natural Resources Inc.), Severance Agreement (Cliffs Natural Resources Inc.)

Section 280G. Notwithstanding anything (a) If any of the payments or benefits received or to be received by the Executive (including, without limitation, any payment or benefits received in this Award Agreement connection with a change in control or the Executive’s termination of employment, whether pursuant to the contrary and regardless terms of whether this Award Agreement has or any other plan, arrangement or agreement, or otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in (the event that any payments, distributions, benefits or entitlements of any type payable to you (CIC BenefitsBenefit Arrangements)) (iall such payments collectively referred 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 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 your 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 of the Code until no portion of such benefits being amount payable to the Executive will be subject to the Excise Tax; provided that , unless the Executive would receive a greater after-tax amount by receiving all such 280G Payments without reduction pursuant to the foregoing provisions of this sentence. 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 below zero) on a pro rata basis. If a change in control occurs while the Company determinesdoes not have stock that is readily tradeable on an established securities market or otherwise (within the meaning of Section 280G of the Code and the regulation thereunder), based on upon the advice of Golden Parachute Executive’s request, the Company will use its commercially reasonable efforts to seek and obtain stockholder approval with respect to any 280G Payments so that the Excise Tax Solutions LLC, or such other nationally recognized certified public would not apply thereto. (b) All calculations and determinations under this Section 5.8 shall be made by an independent accounting firm as may be designated or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureExecutive for all purposes. For purposes of making the calculations and determinations required by this Section 175.8, the Accounting Firm 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 you the Executive shall furnish to the Accounting Firm Tax Counsel with such information and documents as the Accounting Firm Tax Counsel may reasonably require request in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making its determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the 5.8. The Company shall cooperate bear all costs the Tax Counsel may reasonably incur in the valuation of any such connection with its services, including any non-competition provisions.

Appears in 2 contracts

Samples: Employment Agreement, Employment Agreement (Vapotherm Inc)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 16 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 1716, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 1716, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 1716. In connection with making determinations under this Section 1716, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 2 contracts

Samples: Option Award Agreement (GXO Logistics, Inc.), Option Award Agreement (GXO Logistics, Inc.)

Section 280G. (i) Notwithstanding anything contained in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementcontrary, in the event that any paymentsthe benefits provided by this Agreement, distributions, benefits or entitlements together with all other payments and the value of any type payable benefits received or to you be received by Executive (the CIC BenefitsPayments) (i) ), constitute “parachute payments” (within the meaning of Section 280G of the Code), and (ii) and, but for this paragraph Section 7(a)(i), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits the Payments shall be reduced made to Executive either (i) in full or (ii) as to such lesser amount (the “Reduced Amount”) that as which 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 the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 whichever of the Code)foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an amount that is greater than the amount, on a net after after-tax basis, that you would be entitled to retain upon receipt of the Reduced Amountgreatest amount of benefits, notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. Unless Executive shall have given prior written notice specifying a different order to the Company and you otherwise agree in writing, to effectuate any determination required under this Section 17 shall be made in writing in good faith reduction contemplated by the Accounting Firm. In preceding sentence, the event of a reduction of benefits hereunder, benefits Company shall be reduced reduce or eliminate the Payments by first reducing or eliminating the portion of the CIC Benefits that are payable under this Award Agreement cash payments and then by reducing those payments or eliminating the portion of the CIC Benefits that benefits which are not payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitscash, in each case, case in reverse order beginning with payments or benefits which are to be paid the furthest farthest in time from the futureDetermination (as hereinafter defined). For purposes Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of making any other plan, arrangement or agreement governing Executive’s rights and entitlements to any benefits or compensation. (ii) Unless the calculations required Company and Executive otherwise agree in writing, an initial determination as to whether the Payments shall be reduced and the amount of such reduction shall be made, at the Company’s expense, by this Section 17, an accounting firm that the Company selects (the “Accounting Firm 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 authorityFirm”). The Company and you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account provide its determination (the value of any reasonable compensation for services “Determination”), together with detailed supporting calculations and documentation, to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company and Executive within twenty (20) days of the Date of Termination, if applicable, or such other time as requested by the Company or by Executive (provided Executive reasonably believes that any of the Payments may be subject to the Excise Tax). Within ten (10) days of the delivery of the Determination to Executive, Executive shall cooperate in have the valuation of any such servicesright to dispute the Determination (the “Dispute”). If there is no Dispute, including any non-competition provisionsthe Determination shall be binding, final and conclusive upon the Company and Executive.

Appears in 2 contracts

Samples: Employment Agreement (Advanced Micro Devices Inc), Employment Agreement (Advanced Micro Devices Inc)

Section 280G. Notwithstanding anything (a) If any of the payments or benefits received or to be received by the Executive (including, without limitation, any payment or benefits received in this Award Agreement connection with a Change in Control or the Executive’s termination of employment, whether pursuant to the contrary and regardless terms of whether this Award Agreement has otherwise expired or terminatedany other plan, unless otherwise provided in your Employment Agreementarrangement or agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC Benefits”otherwise) (iall such payments collectively referred 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 your CIC Benefits the Executive shall be reduced receive the greatest of the following, whichever gives the Executive the highest net after-tax amount (after taking into account federal, state, local and social security taxes): (1) the 280G Payments or (2) one dollar less than the amount of the 280G Payments that would subject the Executive to such lesser amount the Excise Tax (the “Reduced Safe Harbor Amount”) ). If a reduction in the 280G Payments is necessary so that would result in no portion the 280G Payments equal the Safe Harbor Amount and none of such benefits being the 280G Payments constitute a deferral of compensation within the meaning of and subject to Section 409A (“Nonqualified Deferred Compensation”), then the Excise Tax; provided that such amounts reduction shall not be so reduced occur in the manner the Executive elects in writing prior to the date of payment. If any 280G Payments constitute Nonqualified Deferred Compensation or if the Company determinesExecutive fails to elect an order, based on then the advice 280G Payments to be reduced will be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of Golden Parachute Tax Solutions LLCwhen payment would have been made to you, or such other nationally recognized certified public until the reduction is achieved. (b) All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm as may be designated or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureExecutive for all purposes. For purposes of making the calculations and determinations required by this Section 175.9, the Accounting Firm 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 you the Executive shall furnish to the Accounting Firm Tax Counsel with such information and documents as the Accounting Firm Tax Counsel may reasonably require request in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making its determinations under this Section 17, 5.9. The Company shall bear all costs the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that Tax Counsel may apply to you and reasonably incur in connection with its services. (c) The Executive hereby agrees with the Company and any successor thereto to in good faith consider and take steps commonly used to minimize or eliminate any “parachute payments” within the meaning of Section 280G of the Code if requested to do so by the Company or any successor thereto; provided, however, that the foregoing language shall cooperate neither require the Executive to take or not take any specific action in furtherance thereof nor contravene, limit or remove any right or privilege provided to the valuation of any such services, including any non-competition provisionsExecutive under this Agreement.

Appears in 2 contracts

Samples: Employment Agreement (Bankwell Financial Group, Inc.), Employment Agreement (Bankwell Financial Group, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, payments or benefits or entitlements of any type otherwise payable to you (“CIC Benefits”) Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this paragraph Section 6(i), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you 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 you Executive otherwise agree in writing, any determination required under this Section 17 shall 6(i) will be made in writing in good faith by a nationally-recognized accounting firm selected jointly by the Accounting Firm. In Company and Executive (the event of a reduction of benefits hereunder“Accountants”), benefits shall whose determination will be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureCompany for all purposes. For purposes of making the calculations required by this Section 176(i), the Accounting Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Company and you shall Executive agree to furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and provision. The Company will bear all costs the Company shall bear the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17provision. 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-based awards; and (3) reduction of other benefits paid or provided to Executive. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value event that acceleration of any reasonable compensation for services vesting of equity-based awards is to be rendered by you before or after the Change reduced, such acceleration of Control, including any non-competition provisions that may apply to you and the Company shall cooperate vesting will be cancelled in the valuation reverse order of any such servicesthe date of grant for equity-based awards. If two or more equity-based awards are granted on the same date, including any noneach award will be reduced on a pro-competition provisionsrata basis.

Appears in 2 contracts

Samples: Employment Agreement (Social Leverage Acquisition Corp I), Employment Agreement (Social Leverage Acquisition Corp I)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, benefits or entitlements of any type payable to you 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 6 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 your 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 shall not be so reduced if all or some portion of the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as Total Payments may be designated by subject to the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced AmountExcise Tax. Unless the Company and you Executive otherwise agree in writing, any determination required under this Section 17 18 shall be made in writing in good faith based on the advice of a nationally recognized accounting firm selected by the Accounting FirmCompany (with approval of Executive) (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 this Award Agreement Section 2(c) or Section 5 and then by reducing or eliminating the portion of the CIC Benefits any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash 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 futurekind). For purposes of making the calculations required by this Section 1718, the Accounting Firm 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 you Executive shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require in order to make a determination under this Section 1718, and the Company shall bear the cost of all fees the Accounting Firm charges Accountants charge in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions18.

Appears in 2 contracts

Samples: Employment Agreement (Opgen Inc), Employment Agreement (Minim, Inc.)

Section 280G. Notwithstanding anything in If any payment or benefit that Employee may receive following a change of control of the Company, Employee’s termination of employment, or otherwise, whether or not payable or provided under this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC BenefitsPayment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, and the regulations and guidance thereunder (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 your 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 Tax or (B) the largest portion, up to and including the total amount, of the Payment, whichever of the amounts determined under (A) and (B), 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 Employee’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that such amounts shall not be so reduced if all or some portion of the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as Payment may be designated subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of outstanding equity awards; and reduction of employee benefits. In the event that acceleration of vesting of outstanding equity awards is to be reduced, such acceleration of vesting shall be undertaken in the reverse order of the date of grant of Employee’s outstanding equity awards. All calculations and determinations made pursuant this Section 5(i) will be made by an independent accounting or consulting firm or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureEmployee for all purposes. For purposes of making the calculations and determinations required by this the Section 175(i), the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 2 contracts

Samples: Employment Agreement (Fresh Vine Wine, Inc.), Employment Agreement (Fresh Vine Wine, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other a nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 1 contract

Samples: Restricted Stock Unit Award Agreement (XPO, Inc.)

Section 280G. Notwithstanding anything in any other provision of this Award Agreement or any other plan, arrangement or agreement to the contrary and regardless contrary, to the extent stock of whether this Award Agreement has otherwise expired the applicable corporation (within the meaning of Section 280G of the Code) is readily tradeable on an established securities market, if any of the payments or terminated, unless otherwise benefits provided in your Employment Agreement, in or to be provided by the event that any payments, distributions, benefits Company or entitlements of any type payable its affiliates to you or for your benefit pursuant to the terms of this Agreement or otherwise constitute parachute payments (“CIC BenefitsParachute Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would which could be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) or any interest or penalties with respect to such excise tax (collectively, the “Excise Tax”), then but for the provisions of this Section 11, the amount of the Parachute Payments shall either be (a) reduced so that the total present value of the Parachute Payments is one dollar less than three times your CIC Benefits shall “base amount” (as that term is defined for purposes of Section 280G of the Code), or (b) paid in full without any such reduction, with the choice of the reduction or payment in full being made so that you obtain the greater net after-tax benefit from the choice made after taking into account all taxes you would be reduced required to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being subject pay with respect to the Excise Tax; provided that such amounts shall not paid (assuming the maximum applicable income tax rates). Any determination required under this Section 11 will be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public made in writing by an accounting firm as may be designated or consultant selected by the Company (the “Accounting Firm280G Advisor”), that without such reduction whose determination will be conclusive and binding upon you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futurefor all purposes. For purposes of making the calculations required by this Section 1711, the Accounting Firm 280G Advisor 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 you shall furnish to the Accounting Firm 280G Advisor such information and documents as the Accounting Firm 280G Advisor may reasonably require request in order to make a determination under this Section 17, and the 11. The Company shall bear all costs the cost of all fees the Accounting Firm charges 280G Advisor may reasonably incur in connection with any calculations contemplated by this Section 1711. In connection with making determinations under Unless otherwise agreed by the parties, any reduction in payments and/or benefits required by this Section 1711 shall occur in the following order: (i) first, cash payments (other than amounts subject to Section 409A) shall be reduced in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such Excise Tax will be the first cash payment to be reduced; (ii) second, accelerated vesting of equity awards not subject to Treasury Regulation 1.280G-1, Q/A-24(c), if any, shall be cancelled/reduced in the reverse order of the date of grant for such awards (i.e., the Accounting Firm shall take into account vesting of the value of any reasonable compensation for services to most recently granted equity award will be rendered by you before or after the Change of Controlreduced first); (iii) third, including any non-competition provisions cash payments or benefits (other than (A) accelerated vesting described in subsections (ii) and (iv) and (B) amounts subject to Section 409A), if any, shall be reduced in reverse chronological order such that may apply the non-cash payments or benefits owed on the latest date following the occurrence of the event triggering such Excise Tax will be the first non-cash payment or benefit to you and the Company be reduced; (iv) fourth, accelerated vesting of equity awards subject to Treasury Regulation 1.280G-1, Q/A-24(c), if any, shall cooperate be cancelled/reduced in the valuation order of those awards vesting later in time first (and, if any such servicesawards are vesting on the same date, including any non-competition provisions.in the order of those awards granted later in time first); and (v) fifth, deferred compensation amounts subject to Section 409A shall be reduced last in accordance with Section 409A.

Appears in 1 contract

Samples: Employment Agreement (Primo Brands Corp)

Section 280G. Notwithstanding anything in If any payment or benefit you would receive from the Company and its Subsidiaries or an acquiror pursuant to this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any paymentsUrovant Sciences Ltd. 2017 Equity Incentive Plan, distributionsas Amended and Restated, benefits or entitlements of any type payable to you otherwise (a CIC BenefitsPayment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of 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 your CIC Benefits shall such Payment will be reduced equal to such lesser amount the Higher Amount (defined below). The “Higher Amount” will be either (x) the “Reduced Amount”) 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 amounts shall not be so reduced if Tax or (y) the Company determineslargest portion, based on up to and including the advice total, of Golden Parachute the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by (all computed at the Company (the “Accounting Firm”highest applicable marginal rate), that without such reduction you would be entitled to receive and retainresults in your 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, that you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing greater economic benefit notwithstanding that all or eliminating the some portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating Payment may be subject to the portion of the CIC Benefits that are payable Excise Tax. If a reduction in cash 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 constituting “parachute payments” is necessary so that the furthest Payment equals the Higher Amount, reduction will occur in the futuremanner that results in the greatest economic benefit for you. For purposes If more than one method of making reduction will result in the calculations required by same economic benefit, the items so reduced will be reduced pro rata. Notwithstanding the foregoing, any reduction shall comply with Section 409A including, but not limited to, the ordering of any such reduction. In no event will the Company, any Subsidiary or any stockholder be liable to you for any amounts not paid as a result of the operation of this Section 17, the Accounting Firm 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 authority10. The Company and you shall furnish will use commercially reasonable efforts to cause the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order accounting or law firm engaged to make a determination under this Section 17the determinations hereunder to provide its calculations, and the Company shall bear the cost of all fees the Accounting Firm charges in connection together with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17detailed supporting documentation, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in within fifteen (15) calendar days after the valuation of any date on which your right to a Payment is triggered (if requested at that time by you or the Company) or such services, including any non-competition provisionsother time as requested by you or the Company.

Appears in 1 contract

Samples: Executive Employment Agreement (Urovant Sciences Ltd.)

Section 280G. Notwithstanding anything in this Award Agreement Any provision of the Plan to the contrary notwithstanding, if any payment or benefit a Covered Employee would receive from the Company and regardless of whether this Award Agreement has its subsidiaries or an acquiror pursuant to the Plan or otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (a CIC BenefitsPayment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of 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 your CIC Benefits shall such Payment will be reduced equal to such lesser amount the Higher Amount (defined below). The “Higher Amount” will be either (x) the “Reduced Amount”) largest portion of the Payment that would result in no portion of such benefits the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, 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 Covered Employee’s receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax; provided . If a reduction in payments or benefits constituting “parachute payments” within the meaning of Section 280G of the Code is necessary so that such the Payment equals the Higher Amount, reduction will occur in the manner that results in the greatest economic benefit for a Covered Employee and, to the extent applicable, complies with Section 409A. In no event will the Company, any subsidiary or any stockholder be liable to any Covered Employee for any amounts shall not be so reduced if paid as a result of the operation of this Section 5.3. The Company will use commercially reasonable efforts to cause the accounting or law firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to a Covered Employee and the Company determines, based within 15 calendar days after the date on which such Covered Employee’s right to a Payment is triggered (if requested at that time by such Covered Employee or the advice of Golden Parachute Tax Solutions LLC, Company) or such other nationally recognized certified public accounting firm time as may be designated requested by such Covered Employee or the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsCompany.

Appears in 1 contract

Samples: Employment Agreement (Cara Therapeutics, Inc.)

Section 280G. (a) Notwithstanding anything contained in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementcontrary, in the event that any paymentsthe payments and benefits provided pursuant to this Agreement, distributions, together with all other payments and benefits received or entitlements of any type payable to you be received by Executive (“CIC BenefitsPayments) (i) ), constitute “parachute payments” within the meaning of Code Section 280G of the CodeG, and (ii) and, but for this paragraph Section 4, would be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits the Payments shall be reduced made to Executive either (i) in full or (ii) as to such lesser amount (the “Reduced Amount”) that as 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 the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the a Accounting FirmReduced Payment”), whichever of the foregoing amounts, taking into account 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 benefits, notwithstanding that without all or some portion of the Payments may be subject to the Excise Tax. For the avoidance of doubt, the Payments shall include acceleration of vesting of equity awards granted by Velodyne that vest based on service to Velodyne or any other member of the Velodyne Group and that accelerate in connection with a Change in Control of Velodyne, but only to the extent such reduction you would acceleration of vesting is deemed a parachute payment with respect to a Change in Control of Velodyne. (b) For purposes of determining whether to make a Reduced Payment, if applicable, Velodyne shall cause to be entitled to receive taken into account all federal, state and retain, on a net after tax basis (including, without limitation, any local income and employment taxes and excise taxes payable under applicable to the Executive (including the Excise Tax). If a Reduced Payment is made, Velodyne, and as applicable, all other members of the Velodyne Group, shall reduce or eliminate the Payments in the following order, unless (to the extent permitted by Section 4999 409A of the Code)) Executive elects to have the reduction in payments applied in a different order: (1) cancellation of accelerated vesting of options with no intrinsic value, an amount that is greater (2) reduction of cash payments, (3) cancellation of accelerated vesting of equity awards other than options, (4) cancellation of accelerated vesting of options with intrinsic value and (5) reduction of other benefits paid to the amount, on a net after tax basis, that you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting FirmExecutive. In the event that acceleration of a reduction vesting is reduced, such acceleration of benefits hereunder, benefits vesting shall be reduced by first reducing or eliminating cancelled in the portion reverse order of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion date of grant of the CIC Benefits Executive’s equity awards. In the event that cash payments or other benefits are payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitsreduced, in each case, such reduction shall occur in reverse order beginning with payments or benefits which are to be paid farthest in time from the furthest in date of the futuredetermination. For avoidance of doubt, an option will be considered to have no intrinsic value if the exercise price of the shares subject to the option exceeds the fair market value of such shares. (c) All determinations required to be made under this Section 4 (including whether any of the Payments are parachute payments and whether to make a Reduced Payment) will be made by a nationally recognized independent accounting firm selected by Velodyne. For purposes of making the calculations required by this Section 17section, the Accounting Firm accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonablereasonably, good faith interpretations concerning the application of Code Sections 280G and 4999. Velodyne will bear the Code, and other applicable legal authority. The Company and you shall furnish to costs that the Accounting Firm such information and documents as the Accounting Firm accounting firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges incur in connection with any the calculations contemplated by this Section 174. The accounting firm’s determination will be binding on both Executive and Velodyne and the other members of the Velodyne Group, as applicable, absent manifest error. (d) As a result of uncertainty in the application of Sections 4999 and 280G of the Code at the time of the initial determination by the accounting firm hereunder, it is possible that payments will have been made by Velodyne or another member of the Velodyne Group which should not have been made (an “Overpayment”) or that additional payments which will not have been made by Velodyne or another member of the Velodyne Group could have been made (an “Underpayment”), consistent in each case with the calculation of whether and to what extent a Reduced Payment shall be made hereunder. In connection with making determinations under this Section 17either event, the Accounting Firm accounting firm shall take into account determine the value amount of any reasonable compensation for services the Underpayment or Overpayment that has occurred. In the event that the accounting firm determines that an Overpayment has occurred, the Executive shall promptly repay, or transfer, to be rendered by you before Velodyne or after such other member of the Change of ControlVelodyne Group, including any non-competition provisions that may apply to you and as applicable, the Company shall cooperate in the valuation amount of any such servicesOverpayment; provided, including however, that no amount shall be payable, or transferable, by the Executive to Velodyne or any non-competition provisionsother member of the Velodyne Group if and to the extent that such payment or transfer would not reduce the amount that is subject to taxation under Section 4999 of the Code. In the event that the accounting firm determines that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by Velodyne or such other member of the Velodyne Group, as applicable, to or for the benefit of the Executive, together with interest at the applicable federal rate provided in Section 7872(f)(2) of the Code. (e) If this Section 4 is applicable with respect to an Executive’s receipt of a Reduced Payment, it shall supersede any contrary provision of any plan, arrangement or agreement governing the Executive’s rights to the Payments.

Appears in 1 contract

Samples: Severance and Change in Control Agreement (Velodyne Lidar, Inc.)

Section 280G. Notwithstanding anything in If any payment or benefit received or to be received by Executive pursuant to this Award Agreement to the contrary and regardless of whether this Award Agreement has or otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC BenefitsPayments”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph would Section 12, 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 your CIC Benefits such Payments shall be reduced either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser amount (the “Reduced Amount”) that extent as would result in no portion of such benefits Payments being subject to the Excise Tax; provided , whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax, results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such amounts Payments may be subject to the Excise Tax. If a reduction is required pursuant to Section 280G, the reduction shall not be so made as follows: (x) if none of the parachute payments constitute non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner Executive elects in writing, and (y) if any parachute payments constitute non-qualified deferred compensation or if Executive fails to elect an order, then the parachute payments to be reduced if will be determined by the Company determinesAccounting Firm (defined below) in a manner which has the least economic cost to Executive and, based on to the advice extent the economic cost is equivalent, will be reduced in the inverse order of Golden Parachute Tax Solutions LLCwhen payment would have been made to Executive, or such other nationally recognized certified public until the reduction is achieved. Any determination required under this Section shall be made by independent accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you would whose determination shall be entitled to receive conclusive 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 you would be entitled to retain binding upon receipt of the Reduced Amount. Unless Executive and the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futurefor all purposes. For purposes of making the calculations required by under this Section 17Section, the 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 authority; provided that the Accounting Firm shall assume that Executive pays all taxes at the highest marginal rate. The Company and you Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require request in order to make a determination under this Section 17, and the Section. The Company shall will bear the cost of all fees costs that the Accounting Firm charges may reasonably incur in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsSection.

Appears in 1 contract

Samples: Employment Agreement (Cathay General Bancorp)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in 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 you (“CIC Benefits”) Executive (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 your CIC Benefits Executive’s benefits under this Agreement shall be reduced either (i) delivered in full, or (ii) delivered as to such lesser amount (the “Reduced Amount”) that extent which would result in no portion of such benefits 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 the receipt by Executive on an after–tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such amounts shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as benefits may be designated by the Company (the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, payments to Executive under this Agreement which do not constitute nonqualified deferred compensation subject to Section 409A shall be reduced first, and other payments to Executive shall then be reduced in the following order: reduction of cash payments, cancellation of equity awards granted within the twelve (12) month period prior to a “change in control” (as determined under Code Section 280G) that are deemed to have been granted contingent upon the change in control (as determined under Code Section 280G), an amount that is greater than the amountcancellation of accelerated vesting of equity awards, on a net after tax basis, that you would be entitled to retain upon receipt reduction of the Reduced Amountemployee benefits. Unless the Company and you Executive otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. In Company’s independent public accountants (the event of a reduction of benefits hereunder“Accountants”), 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureCompany for all purposes. For purposes of making the calculations required by this Section 17Section, the Accounting Firm 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 you Executive shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and the Section. The Company shall bear all costs the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsSection.

Appears in 1 contract

Samples: Employment Agreement (Meridian Bioscience Inc)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 16 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 1716, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 1716, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 1716. In connection with making determinations under this Section 1716, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.. The parties have duly executed this Award Agreement as of the date first written above. XPO LOGISTICS, INC. by /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Chief Human Resources Officer The Participant acknowledges, accepts and agrees each of the following:

Appears in 1 contract

Samples: Award Agreement (GXO Logistics, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement to (i) To the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event extent that any paymentspayment, distributions, benefits benefit or entitlements distribution of any type payable to you or for the benefit of the Executive by the Company or any of its affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other equity- based awards) (collectively, the CIC BenefitsTotal Payments”) (i) constitute “parachute payments” within would be subject to the meaning of excise tax imposed under Section 280G 4999 of the Code, and then the Total Payments shall be reduced (iibut not below zero) but for this paragraph so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to be subject to the excise tax imposed by Section 4999 of the Code (Code, but only if the “Excise Tax”), then your CIC Benefits shall be Total Payments so 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on Executive receiving a net after tax basis (including, without limitation, any amount that exceeds the net after tax amount the Executive would receive if the Total Payments were not reduced and were instead subject to the excise taxes payable under tax imposed on excess parachute payments by Section 4999 of the Code), an amount that is greater than the amount, on a net after tax basis, that you would be entitled to retain upon receipt of the Reduced Amount. Unless the Executive shall have given prior written notice to the Company and you otherwise agree to effectuate a reduction in writingthe Total Payments if such a reduction is required, any determination required such notice consistent with the requirements of Section 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of stock options or similar awards, then by reducing or eliminating any accelerated vesting 3 (ii) If the Total Payments to the Executive are reduced in accordance with Section 6(c), as a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial reduction under this Section 17 6(c), it is possible that Total Payments to the Executive which will not have been made by the Company should have been made (“Underpayment”) or that Total Payments to the Executive which were made should not have been made (“Overpayment”). If an Underpayment has occurred, the amount of any such Underpayment shall be made in writing in good faith promptly paid by the Accounting FirmCompany to or for the benefit of the Executive. In the event of a reduction of benefits hereunderan Overpayment, benefits then the Executive shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish promptly repay to the Accounting Firm such information and documents as Company the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation amount of any such servicesOverpayment together with interest on such amount (at the same rate as is applied to determine the present value of payments under Section 280G of the Code or any successor thereto), including any non-competition provisionsfrom the date the reimbursable payment was received by the Executive to the date the same is repaid to the Company. 7.

Appears in 1 contract

Samples: Retention Agreement (OvaScience, Inc.)

Section 280G. Notwithstanding anything in If any payment or benefit that the Executive may receive, whether or not payable or provided under this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC BenefitsPayment) ), would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of 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 your 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 Tax or (B) the total amount, of the Payment, whichever of the amounts determined under (A) and (B), 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 amount of the Payment notwithstanding that such amounts shall not be so reduced if all or some portion of the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as Payment may be designated subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: reduction of cash payments; reduction of employee benefits; and cancellation of accelerated vesting of outstanding equity awards. In the event that acceleration of vesting of outstanding equity awards is to be reduced, such acceleration of vesting shall be undertaken in the reverse order of the date of grant of the Executive’s outstanding equity awards. All calculations and determinations made pursuant this Section 5 will be made by an independent accounting or consulting firm or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureExecutive for all purposes. For purposes of making the calculations and determinations required by this Section 175, the Accounting Firm 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 you shall furnish to bear all costs the Accounting Firm such information and documents as the Accounting Firm Tax Counsel may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges incur in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such its services, including any non-competition provisions.

Appears in 1 contract

Samples: Executive Severance Agreement (TravelCenters of America Inc. /MD/)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, benefits or entitlements of any type payable to you Jxxxx (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 6 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 your 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 Jxxxx’x receipt on an after-tax basis of the greatest amount of the Total Payments, notwithstanding that such amounts shall not be so reduced if all or some portion of the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as Total Payments may be designated by subject to the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced AmountExcise Tax. Unless the Company and you Jxxxx otherwise agree in writing, any determination required under this Section 17 10 shall be made in writing in good faith based on the advice of a nationally recognized accounting firm selected by the Accounting FirmCompany (with approval of Jxxxx) (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 this Award Agreement Section 5 and then by reducing or eliminating the portion of the CIC Benefits any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash 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 futurekind). For purposes of making the calculations required by this Section 1710, the Accounting Firm 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 you Jxxxx shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require in order to make a determination under this Section 1710, and the Company shall bear the cost of all fees the Accounting Firm charges Accountants charge in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions10.

Appears in 1 contract

Samples: Ceo Employment Agreement (Blink Charging Co.)

Section 280G. Notwithstanding anything in this Award Agreement If any payment or benefit (including payments and benefits pursuant to the contrary and regardless of whether this Award Agreement has Agreement) that Executive would receive in connection with a Change in Control from the Company or otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (a CIC BenefitsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of 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 your CIC Benefits the Company shall cause to be reduced determined, before any amounts of the Transaction Payment are paid to such lesser amount (Executive, which of the “Reduced Amount”) that following two alternative forms of payment would result in no Executive’s receipt, on an after-tax basis, of the greater amount of Transaction Payments notwithstanding that all or some portion of such benefits being the Transaction Payment may be subject to the Excise Tax; provided that such amounts shall not be so reduced if : (1) payment in full of the Company determines, based on entire amount of the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company Transaction Payments (the a Accounting FirmFull Payment”), that without such reduction you would be entitled to receive and retain, on or (2) payment of only 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits Transaction Payments so that are payable under this Award Agreement and then by reducing or eliminating Executive receives the portion largest payment possible without the imposition of the CIC Benefits that are payable in cash 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 futureExcise Tax (a “Reduced Payment”). For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order determining whether to make a determination under this Section 17Full Payment or a Reduced Payment, and the Company shall bear cause to be taken into account all applicable federal, state, local and foreign income and employment taxes and the cost Excise Tax (all computed at the highest applicable marginal rate, net of all fees the Accounting Firm charges maximum reduction in connection with federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any calculations contemplated by this additional payments and/or benefits constituting the forfeited portion of the Full Payment, and (y) reduction in payments and/or benefits will occur in the manner that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. Notwithstanding the foregoing, if such reduction would result in any portion of the Transaction Payments being subject to penalties pursuant to Section 17409A that would not otherwise be subject to such penalties, then the reduction method shall be modified so as to avoid the imposition of penalties pursuant to Section 409A as follows: (A) Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and (B) Transaction Payments that are “deferred compensation” within the meaning of Section 409A shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A. In the event that acceleration of vesting of any equity compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and no event will the Company shall cooperate in or any stockholder be liable to Executive for any amounts not paid as a result of the valuation operation of any such services, including any non-competition provisionsthis provision.

Appears in 1 contract

Samples: Executive Severance and Change in Control Agreement (Docusign, Inc.)

Section 280G. Notwithstanding anything (a) If any payment or benefit (including payments and benefits pursuant to this Agreement) that the Executive would receive in this Award Agreement to connection with a change in ownership of the contrary and regardless Company or any its assets or a change in effective control of whether this Award Agreement has the Company or any similar transaction (the “Transaction”) from the Company or otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC BenefitsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of 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 your CIC Benefits the Company shall cause to be reduced determined, before any amounts of the Transaction Payment are paid to such lesser amount (the “Reduced Amount”) that Executive, which of the following two alternative forms of payment would result in no the Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of such benefits being the Transaction Payment may be subject to the Excise Tax; provided that such amounts shall not be so reduced if : (1) payment in full of the Company determines, based on entire amount of the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company Transaction Payment (the a Accounting FirmFull Payment”), that without such reduction you would be entitled to receive and retain, on or (2) payment of only a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 part of the Code), an amount Transaction Payment so that is greater than the amount, on a net after tax basis, that you would be entitled to retain upon receipt Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futurePayment”). For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order determining whether to make a determination under this Section 17Full Payment or a Reduced Payment, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take cause to be taken into account the value of all applicable federal, state and local income and employment taxes and the 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, (x) the Executive shall have no rights to any reasonable compensation for services additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to the Executive as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment shall be rendered by you before reduced pro rata. (b) Notwithstanding the foregoing, in the event that no stock of the Company or after any direct or indirect parent of the Change Company is readily tradeable on an established securities market or otherwise (within the meaning of ControlSection 280G of the Code) at the time of the Transaction, including any non-competition provisions that may apply to you and the Company shall cause a vote of shareholders to be held to approve the portion of the Transaction Payments that equals or exceeds three times (3x) the Executive’s “base amount” (within the meaning of Section 280G of the Code) (the “Excess Parachute Payments”) in accordance with Treas. Reg. §1.280G-1, and the Executive shall cooperate in with such vote of shareholders, including the valuation execution of any required documentation subjecting the Executive’s entitlement to all Excess Parachute Payments to such servicesshareholder vote. In the event that the Company does not cause a vote of shareholder to be held to approve all Excess Parachute Payments, including any non-competition provisionsthe provisions set forth in Section 10(a) of this Agreement shall apply.

Appears in 1 contract

Samples: Executive Employment Agreement (HWEL Holdings Corp.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in 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 you (“CIC Benefits”) Executive (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 your CIC Benefits Executive's benefits under this Agreement shall be reduced either (i) delivered in full, or (ii) delivered as to such lesser amount (the “Reduced Amount”) that extent which would result in no portion of such benefits 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 the receipt by Executive on an after−tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such amounts shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as benefits may be designated by the Company (the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, payments to Executive under this Agreement which do not constitute nonqualified deferred compensation subject to Section 409A shall be reduced first, and other payments to Executive shall then be reduced in the following order: reduction of cash payments, cancellation of equity awards granted within the twelve (12) month period prior to a "change in control" (as determined under Code Section 280G) that are deemed to have been granted contingent upon the change in control (as determined under Code Section 280G), an amount that is greater than the amountcancellation of accelerated vesting of equity awards, on a net after tax basis, that you would be entitled to retain upon receipt reduction of the Reduced Amountemployee benefits. Unless the Company and you Executive otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. In Company's independent public accountants (the event of a reduction of benefits hereunder"Accountants"), 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureCompany for all purposes. For purposes of making the calculations required by this Section 17Section, the Accounting Firm 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 you Executive shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and the Section. The Company shall bear all costs the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsSection.

Appears in 1 contract

Samples: Employment Agreement (Meridian Bioscience Inc)

Section 280G. Notwithstanding anything (a) Anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementnotwithstanding, 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 you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm shall determine whether some amount of Agreement Payments meets the definition of “Reduced Amount.” If the Accounting Firm determines that there is a Reduced Amount, then the aggregate Agreement Payments shall be reduced to such Reduced Amount. (b) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced to the Reduced Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof, and the Executive may make reasonable assumptions then elect, in his sole discretion, which and approximations concerning applicable taxes and may rely on reasonablehow much of the Agreement Payments shall be eliminated or reduced (as long as after such election the Present Value of the aggregate Agreement Payments equals the Reduced Amount); provided, good faith interpretations concerning that the application Executive shall not be permitted to elect to reduce any Agreement Payment that constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Code, and other applicable legal authorityshall advise the Company in writing of his election within ten days of his receipt of notice. The If no such election is made by the Executive within such ten day period, the Company shall reduce the Agreement Payments in the following order: (1) by reducing benefits payable pursuant to Section 5(a)(1)(B) of the Agreement and you shall furnish then (2) by reducing amounts payable pursuant to Section 5(a)(2) of the Agreement. All determinations made by the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, 8 shall be binding upon the Company and the Company Executive and shall bear be made within 60 days of the cost Executive’s Date of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17Termination. In connection with making determinations under this Section 178, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you the Executive before or after the Change of in Control, including any non-competition provisions that may apply to you the Executive and the Company shall cooperate in the valuation of 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 have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this 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 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; 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. (d) All fees and expenses of the Accounting Firm in implementing the provisions of this Section 8 shall be borne by the Company.

Appears in 1 contract

Samples: Change in Control Employment Agreement (Wausau Paper Corp.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, payments or benefits or entitlements of any type otherwise payable to you (“CIC Benefits”) Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this paragraph Section 6(g), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you 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 you Executive otherwise agree in writing, any determination required under this Section 17 shall 6(g) will be made in writing in good faith by a nationally-recognized accounting firm selected jointly by the Accounting Firm. In Company and Executive (the event of a reduction of benefits hereunder“Accountants”), benefits shall whose determination will be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureCompany for all purposes. For purposes of making the calculations required by this Section 176(g), the Accounting Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Company and you shall Executive agree to furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and provision. The Company will bear all costs the Company shall bear the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17provision. 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-based awards; and (3) reduction of other benefits paid or provided to Executive. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value event that acceleration of any reasonable compensation for services vesting of equity-based awards is to be rendered by you before or after the Change reduced, such acceleration of Control, including any non-competition provisions that may apply to you and the Company shall cooperate vesting will be cancelled in the valuation reverse order of any such servicesthe date of grant for equity-based awards. If two or more equity-based awards are granted on the same date, including any noneach award will be reduced on a pro-competition provisionsrata basis.

Appears in 1 contract

Samples: Employment Agreement (NCR VOYIX Corp)

Section 280G. Notwithstanding anything in this Award Agreement If any payment or benefit (including payments and benefits pursuant to the contrary and regardless of whether this Award Agreement has Agreement) that Executive would receive in connection with a Change in Control from the Company or otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (a CIC BenefitsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of 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 your CIC Benefits the Company shall cause to be reduced determined, before any amounts of the Transaction Payment are paid to such lesser amount (Executive, which of the “Reduced Amount”) that following two alternative forms of payment would result in no Executive’s receipt, on an after-tax basis, of the greater amount of Transaction Payments notwithstanding that all or some portion of such benefits being the Transaction Payment may be subject to the Excise Tax; provided that such amounts shall not be so reduced if : (1) payment in full of the Company determines, based on entire amount of the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company Transaction Payments (the a Accounting FirmFull Payment”), that without such reduction you would be entitled to receive and retain, on or (2) payment of only 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits Transaction Payments so that are payable under this Award Agreement and then by reducing or eliminating Executive receives the portion largest payment possible without the imposition of the CIC Benefits that are payable in cash 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 futureExcise Tax (a “Reduced Payment”). For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order determining whether to make a determination under this Section 17Full Payment or a Reduced Payment, and the Company shall bear cause to be taken into account all applicable federal, state, local and foreign income and employment taxes and the cost Excise Tax (all computed at the highest applicable marginal rate, net of all fees the Accounting Firm charges maximum reduction in connection with federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any calculations contemplated by this additional payments and/or benefits constituting the forfeited portion of the Full Payment, and (y) reduction in payments and/or benefits will occur in the manner that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. Notwithstanding the foregoing, if such reduction would result in any portion of the Transaction Payments being subject to penalties pursuant to Section 17409A that would not otherwise be subject to such penalties, then the reduction method shall be modified so as to avoid the imposition of penalties pursuant to Section 409A as follows: (A) Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and (B) Transaction Payments that are “deferred compensation” within the meaning of Section 409A shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A. In the event that acceleration of vesting of any equity compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In connection with making no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the Change in Control shall make all determinations required to be made under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.Exhibit

Appears in 1 contract

Samples: Executive Severance and Change in Control Agreement (Docusign, Inc.)

Section 280G. Notwithstanding anything contained in this Award Agreement Agreement, or in any other employment, severance or similar agreement between you and the Company to the contrary contrary, to the extent that the payments and regardless of whether benefits provided under this Award Agreement has otherwise expired and benefits provided to you, or terminatedfor your benefit, unless otherwise provided in your Employment Agreement, in under any other Company plan or agreement (such payments or benefits are collectively referred to as the event that any payments, distributions, benefits or entitlements of any type payable to you (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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 Internal Revenue Code of 1986, as amended (the “Code), an amount the Benefits shall be reduced (but not below zero) if and to the extent that is greater than a reduction in the Benefits would result in you retaining a larger amount, on a net after an after-tax basisbasis (taking into account federal, that state and local income taxes and the Excise Tax), than if you would be entitled to retain upon receipt received all of the Reduced Benefits (such reduced amount is referred to hereinafter as the “Limited Benefit Amount”). Unless you shall have given prior written notice (to the extent such a notice does not result in any tax liabilities under Section 409A of the Code) specifying a different order to the Company and you otherwise agree in writingto effectuate the Limited Benefit Amount, any determination required under this Section 17 the Company shall be made in writing in good faith by reduce or eliminate the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced Benefits by first reducing or eliminating the portion of the CIC Benefits that those payments or benefits which are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are not payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitspayments, in each case, case in reverse order beginning with payments or benefits which are to be paid the furthest farthest in time from the futureDetermination (as defined below). For purposes Any notice given by you pursuant to the preceding sentence shall take precedence over the provisions of making any other plan, arrangement or agreement governing your rights and entitlements to any benefits or compensation. A determination as to whether the calculations required Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and the amount of such Limited Benefit Amount shall be made by this Section 17, Company’s independent public accountants or another certified public accounting firm of national reputation designated by the Company (the “Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning Firm”) at the application of the Code, and other applicable legal authorityCompany’s expense. The Company and you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account provide its determination (the value of any reasonable compensation for services to be rendered by you before or after the Change of Control“Determination”), including any non-competition provisions that may apply together with detailed supporting calculations and documentation to you and the Company within five (5) days of the date of termination of your employment, if applicable, or such other time as requested by you or the Company (provided you reasonably believe that any of the Benefits may be subject to the Excise Tax), and if the Accounting Firm determines that no Excise Tax is payable by you with respect to any Benefits, it shall cooperate in the valuation of furnish you with an opinion reasonably acceptable to you that no Excise Tax will be imposed with respect to any such servicesBenefits. Unless you provide written notice to the Company within ten (10) days of the delivery of the Determination to you that you dispute such Determination, including the Determination shall be binding, final and conclusive upon you and the Company. [For avoidance of doubt, the foregoing Section 280G provision expressly supersedes and replaces Section 2 of that certain Severance Agreement between you and the Company dated [ ], and such section shall be of no effect at any non-competition provisionstime after the date of this Agreement first set forth above.]

Appears in 1 contract

Samples: Equity/Long Term Incentive Award Agreement (Cell Therapeutics Inc)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether contained in this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in to the event extent that any paymentsof the payments and benefits provided for under this Agreement or any other agreement or arrangement between you and the Company (collectively, distributions, benefits or entitlements of any type payable to you (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 10(b), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 your receipt on an amount that is greater than the amount, on a net after after-tax basis, that you 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 you and the Company and you otherwise agree in writing, any determination required under this Section 17 10(b) shall be made in writing in good faith by the Accounting Firm. In Company’s independent public accountants (the event of a reduction of benefits hereunder“Accountants”), benefits whose reasonable determination shall be reduced by first reducing or eliminating conclusive and binding upon you and the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureCompany for all purposes. For purposes of making the calculations required by this Section 1710(b), the Accounting Firm 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, . You and other applicable legal authority. The the Company and you shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 1710(b). If this Section 10(b) is applied to reduce an amount payable to the you, and the Company shall bear Internal Revenue Service successfully asserts that, despite the cost reduction, you have nonetheless received payments which are in excess of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions maximum amount that may apply could have been paid to you and without being subjected to any excise tax, then, unless it would be unlawful for the Company shall cooperate to make such a loan or similar extension of credit to you, you may repay such excess amount to the Company though such amount constitutes a loan to you made at the date of payment of such excess amount, bearing interest at 120% of the applicable federal rate (as determined under Section 1274(d) of the Code in respect of such loan).” If you find the foregoing acceptable, please kindly so indicate by executing and dating the attached copy of this letter agreement in the valuation space provided and returning a copy to me at your earliest convenience. Very truly yours, NILE THERAPEUTICS, INC. /s/ Pxxxx Xxxxxxxxxx Pxxxx Xxxxxxxxxx Chairman, Compensation Committee of any such servicesthe Board of Directors Agreed and accepted this 21st day of March, including any non-competition provisions.2013: Dxxxxxx Xxxxxx, M.D. 3 | Page

Appears in 1 contract

Samples: Letter Agreement (Nile Therapeutics, Inc.)

Section 280G. (a) Notwithstanding anything in any other provision of this Award Amended and Restated Agreement to the contrary contrary, but subject to Section 8(b) below, if any payments or benefits Executive would receive from the Employer pursuant to this Amended and regardless of whether this Award Restated Agreement has or otherwise expired (collectively, the “Payments”) would, either separately or terminated, unless otherwise provided in your Employment Agreement, in the event that any paymentsaggregate, distributions, benefits or entitlements of any type payable to you (“CIC Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) but for this paragraph would sentence, be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, the “Excise Tax”), then your CIC Benefits shall the Payments will be reduced adjusted to such lesser amount (equal the Reduced Amount. The “Reduced Amount” will be either (1) the entire amount of the Payments, or (2) an amount equal to the largest portion of the Payments that would result in no portion of such benefits any of the Payments (after reduction) being subject to the Excise Tax, whichever amount 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, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments. If a reduction in the Payments is to be made so that the amount of the Payments equals the Reduced Amount, the Payments will be paid only to the extent permitted under the Reduced Amount alternative; provided provided, that in the event the Reduced Amount is paid, the Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying these principles, any reduction or elimination of the Payments shall be made in a manner consistent with the requirements of Section 409A of the Code 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. (b) Notwithstanding the foregoing, in the event there is a Change in Control pursuant to the Merger Agreement and it shall be so reduced if determined that any Payment would be subject to the Company determinesExcise Tax, based on then the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you would Executive shall be entitled to receive an additional payment (not to exceed $3,000,000 (the “Cap”)) (the "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (excluding any interest or penalties imposed with respect to such taxes that do not arise solely due to the Company’s failure to properly report or withhold with respect to such Payments in accordance with applicable law or to timely pay any Gross-Up in accordance with this Agreement, but including interest and retainpenalties imposed with respect to such taxes that arise solely due to the Company’s failure to properly and timely report or withhold with respect to such Payments in accordance with applicable law or to timely pay any Gross-Up in accordance with this Agreement (the “Covered Interest and Penalties”)), including, without limitation, any income taxes (including any Covered Interest and Penalties) and Excise Tax imposed upon the Payment and the Gross-Up Payment, the net amount of the Payment and Gross-Up Payment that is retained by the Executive is equal to the net after-tax amount that the Executive would have retained had the Payment been made and no Excise Tax or Covered Interest and Penalties applied. Furthermore, the Cap shall not apply to reduce any Gross-Up Payment in respect of Covered Interest and Penalties. (i) Subject to the provisions of Section 8(b)(ii), all determinations required to be made under this Section 8(b), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young, which shall provide detailed supporting calculations both to the Employer and the Executive within five (5) business days of the receipt of any notices from the Executive or the Employer that there will be or has been a Payment or such earlier time as is requested by the Executive or the Employer. All fees and expenses of Ernst & Young shall be borne solely by the Employer. Any Gross-Up Payment, as determined pursuant to this Section 8(b), shall be paid by the Employer to the Executive within five (5) days of the receipt of Ernst & Young's determination. Except to the extent alleged otherwise by the Internal Revenue Service or other taxing authority, any determination by Ernst & Young shall be binding upon the Employer and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by Ernst & Young hereunder, it is possible that Gross-Up Payments that will not have been made by the Employer should have been made (the "Underpayment"), consistent with the calculations required to be made hereunder. In the event the Employer exhausts its remedies pursuant to Section 8(b)(ii) and the Executive is thereafter required to make a payment of any Excise Tax, Ernst & Young shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Employer to or for the benefit the Executive, such that, after payment of such Underpayment the Executive will be left in the net after-tax position described in the first paragraph of this Section 8(b). Further, it is possible that Gross-Up Payments that will have been made by the Employer should not have been made (the "Overpayment"), consistent with the calculations required to be made hereunder. In the event of an Overpayment, Ernst & Young shall determine the amount of the Overpayment that has occurred and any such Overpayment shall be promptly paid by the Executive to the Employer, such that, after payment of such Overpayment the Executive will be left in the net after-tax position described in the first paragraph of this Section 8(b), but not in a better net after-tax position than if such Overpayment had not been made. (ii) The Executive shall notify the Employer in writing of any claim by the Internal Revenue Service or any other taxing authority that, if successful, would require the payment by the Employer of the Gross-Up Payment or an additional amount of a Gross-up Payment in order to leave the Executive in the net after-tax position described in the first paragraph of this Section 8(b), or any notice or determination that an Overpayment has been made. Such notification shall be given as soon as practicable but no later than thirty (30) days after the Executive is informed in writing of such claim or notice and shall apprise the Employer of the nature of such claim or notice and the date on which such claim is requested to be paid or on which such Overpayment is to be refunded to the Executive. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which the Executive gives such notice to the Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Employer notifies the Executive in writing prior to the expiration of such period that the Employer desires in good faith to contest such claim, the Executive shall: (A) give the Employer any information reasonably requested by the Employer relating to such claim, (B) take such action in connection with contesting such claim as the Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Employer, (C) cooperate with the Employer in good faith in order effectively to contest such claim, and (D) permit the Employer to participate in any proceedings relating to such claim; provided, however, that the Employer shall bear and pay directly all costs and expenses (including additional Covered Interest and Penalties) incurred in connection with such contest, and shall indemnify the Executive and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including Covered Interest and Penalties with respect thereto) imposed as a net after result of such claim, representation and payment of costs and expenses (subject to the Cap). Without limitation on the foregoing provisions of this Section 8(b)(ii), and except as provided below, the Employer may, at its sole cost, control all proceedings taken in connection with such contest, and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax basis claimed and sxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Employer shall determine; provided, however, that, if the Employer directs the Executive to pay such claim and sxx for a refund, the Employer shall advance the amount of such payment to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including Covered Interest or Penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance (subject to the Cap); and provided, further, that any extension of the statute of limitations relating to payment of taxes for the Executive's taxable year with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, (i) the Employer will keep the Executive regularly apprised of the status of any contest or proceeding that it controls pursuant to this Section 8(b)(ii) and will discuss with the Executive any disagreement that he may have regarding the course or strategy of any such contest or proceeding, and (ii) if applicable, the Employer's control of the contest shall be limited to issues with respect to which the Gross-Up Payment would be payable hereunder (including, without limitation, any excise taxes payable under Section 4999 of a claim, representation or proceeding where the CodeCap may be reached or exceeded), an amount that is greater than and the amount, on a net after tax basis, that you would Executive shall be entitled to retain upon settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority (and the Employer and the Executive agree to work together in good faith to jointly control any such claim, representation, or proceeding). (iii) If, after the receipt by the Executive of an amount advanced by the Employer pursuant to Section 8(b)(ii), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Employer's complying with the requirements of Section 8(b)(ii)) promptly pay to the Employer the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Employer pursuant to Section 8(b)(ii), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Employer does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then (subject to the Employer's complying with the requirements of Section 8(b)(ii)) such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. (iv) Notwithstanding the foregoing, in the event the Employer shall determine that any information (including any "base amount" information) provided by the Executive or on behalf of the Reduced Amount. Unless Executive which is set forth in the Company "Watermark 280G Calculations Excel" (the "Section 280G Analysis") attached hereto as Exhibit E was misrepresented, and you otherwise agree the Executive knew or should have known, after reasonable inquiry, of such misrepresentation, then (x) the Employer shall not be obligated to make a Gross-Up Payment in writing, any determination required under this excess of an amount necessary to gross up the Section 17 4999 excise tax determined in the Section 280G Analysis as the "Worst Case" and (y) no Gross-Up Payment (or portion thereof) shall be made if the Gross-Up Payment (or such portion thereof) would leave the Executive in writing in good faith by a worse net after-tax position (taking into account income, employment and Excise Taxes on the Accounting Firm. In Payments and the event of a reduction of benefits hereunder, benefits Gross-Up Payment) than the Executive would have been if the Gross-Up Payment (or portion thereof) had not been paid. (v) Any payment due to the Executive (or paid on the Executive’s behalf) pursuant to this Section 8(b) shall be reduced by first reducing paid on or eliminating prior to the portion of date the CIC Benefits that are payable under this Award Agreement and then by reducing applicable Excise Tax is due to the Internal Revenue Service or eliminating other taxing authority. Without limiting the portion of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitsforegoing, in each case, in reverse order beginning to ensure compliance with payments or benefits which are to be paid the furthest in the future. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 authority. The Company and you shall furnish any payment due to the Accounting Firm such information and documents as Executive (or paid on the Accounting Firm may reasonably require in order Executive’s behalf) pursuant to make a determination under this Section 178(b) shall, and shall be paid within the Company shall bear the cost of all fees the Accounting Firm charges timeframe described in connection with any calculations contemplated by this Treas. Reg. Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions1.409A-3(i)(1)(v).

Appears in 1 contract

Samples: Employment Agreement (Watermark Lodging Trust, Inc.)

Section 280G. Notwithstanding anything (a) Anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementnotwithstanding, 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 you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm shall determine whether some amount of Agreement Payments meets the definition of “Reduced Amount.” If the Accounting Firm determines that there is a Reduced Amount, then the aggregate Agreement Payments shall be reduced to such Reduced Amount. (b) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced to the Reduced Amount, the Bank or the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof, and the Executive may make reasonable assumptions then elect, in his sole discretion, which and approximations concerning applicable taxes and may rely on reasonablehow much of the Agreement Payments shall be eliminated or reduced (as long as after such election the Present Value of the aggregate Agreement Payments equals the Reduced Amount); provided, good faith interpretations concerning that the application Executive shall not be permitted to elect to reduce any Agreement Payment that constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Code, and other applicable legal authorityshall advise the Bank or the Company in writing of her election within ten days of her receipt of notice. The If no such election is made by the Executive within such ten-day period, the Bank or the Company shall reduce the Agreement Payments in the following order: (1) by reducing benefits payable pursuant to Section 5(a)(1)(B) of the Agreement and you shall furnish then (2) by reducing amounts payable pursuant to Section 5(a)(2) of the Agreement. All determinations made by the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 178 shall be binding upon the Bank, the Company and the Company Executive and shall bear be made within 60 days of the cost Executive’s Date of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17Termination. In connection with making determinations under this Section 178, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you the Executive before or after the Change of Control, including any non-competition provisions that may apply to you the Executive and the Bank and the Company shall cooperate in the valuation of 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 Bank or 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 have not been paid or distributed by the Bank or the Company to or for the benefit of the Executive pursuant to this 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 Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Bank, 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 Bank or the Company to or for the benefit of the Executive shall be repaid by the Executive to the Bank or the Company (as applicable) 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 Bank or 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 Accounting Firm in implementing the provisions of this Section 8 shall be borne by the Bank or the Company, as applicable.

Appears in 1 contract

Samples: Change of Control Employment Agreement (Suffolk Bancorp)

Section 280G. (a) Notwithstanding anything contained in this Award Employment Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminatedcontrary, unless otherwise provided in your Employment Agreement, in (i) to the event 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 you 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”), then your CIC Benefits shall be reduced 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 such lesser the maximum amount (the “Reduced Amount”) that would result in no portion of such benefits could be paid without any Payments being subject to the Excise Tax; provided that , then (iii) such amounts shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. In the event of a reduction of benefits hereunder, benefits Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payments to be made or benefit to be provided to the Executive shall be subject to the Excise Tax. If the Payments are so reduced, the Company shall reduce or eliminate the Payments (x) by first reducing or eliminating the portion of the CIC Benefits Payments which are not payable in cash (other than that are payable under this Award Agreement portion of the Payments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the CIC Benefits that are Payments (whether payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitsnot payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case, case in reverse order beginning with payments or benefits which are to be paid the furthest farthest in time. In applying these principles, any reductions shall be made in a manner consistent with the requirements of Section 409A of the Code 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. (b) It is possible that after the determinations and selections made pursuant to this Section 6.2 the Executive will receive Payments that are, in the future. For purposes of making aggregate, either more or less than the calculations required by amount provided under this Section 176.2 (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, then the Accounting Firm may make reasonable assumptions 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 approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application under Section 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 (x) by arbitration pursuant to Section 7.6, and other applicable legal authority. The Company and you shall furnish to (y) by a court or (z) by the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make Company’s independent accountants upon request by a determination under this Section 17Party, and that an Underpayment has occurred, 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 Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, 6.2 not been applied until the Accounting Firm shall take into account the value date of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionspayment.

Appears in 1 contract

Samples: Employment Agreement (Aecom Technology Corp)

Section 280G. (a) Notwithstanding anything in this Award Employment Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementcontrary, in the event that any payments, distributions, benefits or entitlements of any type payable to you the Company’s independent public accountants (the CIC BenefitsAccountants”) shall determine that receipt of all payments or benefits made or provided by the Company or its affiliated companies in the nature of compensation to or for Employee’s benefit (i) constitute each, a parachute payments” within the meaning of Section 280G of the CodePayment”), whether payable or to be provided pursuant to this Employment Agreement or otherwise, and (ii) but for this paragraph including, without limitation, the post-termination payments and benefits provided pursuant to Section 9 and the restricted shares provided pursuant to Section 14, would be subject Employee to the excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), the Payments shall be reduced to the Reduced Amount (as defined below). (b) If the Accountants determine that aggregate Payments should be reduced to the Reduced Amount, the Company shall promptly give Employee notice to that effect and a copy of the detailed calculation thereof. Any reduction of the Payments shall be made in such a manner as will provide Employee with the greatest Net After-Tax Receipt, as defined below. (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 Accountants hereunder, it is possible that Payments will have been made by the Company to or for the benefit of Employee which should not have been so made (the Excise TaxOverpayment”), then your CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) or that would result in no portion of such benefits being subject to the Excise Tax; provided that such additional amounts shall which will have not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, been paid or such other nationally recognized certified public accounting firm as may be designated distributed by the Company to or for the benefit of Employee could have been so paid or distributed (the Accounting FirmUnderpayment”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefits, in each case, consistent with the calculation of the Reduced Amount hereunder. In the event that the Accountants, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or Employee which the Accountants believe has a high probability of success, determine that an Overpayment has been made, Employee shall pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in reverse order beginning with payments or benefits which are to be paid the furthest in the future. For purposes of making the calculations required by this Section 17, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application 7872(f)(2) of the Code; provided, and other applicable legal authority. The Company and you however, that no amount shall furnish be payable by Employee to the Accounting Firm Company if and to the extent such information payment would not either reduce the amount on which Employee is subject to tax under Section 1 and documents as Section 4999 of the Accounting Firm may reasonably require in order to make Code or generate a determination under this Section 17refund of such taxes. In the event that the Accountants determine that an Underpayment has occurred, and any such Underpayment shall be promptly paid by the Company shall bear to or for the cost benefit of all fees Employee together with interest at the Accounting Firm charges applicable federal rate provided for in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, 7872(f)(2) of the Accounting Firm shall take into account Code. (d) The following terms have the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.meanings set forth below:

Appears in 1 contract

Samples: Employment Agreement (Prospect Acquisition Corp)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, benefits or entitlements of any type payable or provided by AGNC, the Company or any of their subsidiaries to you the Executive, whether or not payable in connection with this Agreement or upon a termination of employment (“CIC BenefitsPayments) ), (i) constitute “parachute payments” within the meaning of Section 280G of the CodeG, and (ii) but for this paragraph 22 would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits the Payments shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits the Payments being subject to the Excise Tax; provided Tax; provided, however, that such amounts Payments shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other a nationally recognized certified public accounting firm as may be designated selected by the Company Board in good faith (the “Accounting FirmAccountants), ) determines that without such reduction you reduction, the 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, federal, state and local income taxes, social security and Medicare taxes and all other applicable taxes, determined by applying the highest marginal rate under Section 1 of the Code and under state and local tax laws which applied (or is likely to apply) to the Executive’s taxable income for the tax year in which the transaction which causes the application of Section 280G occurs, or such other rate(s) as the Accountants determine to be likely to apply to the Executive in the relevant tax year(s) in which any of the Payments are expected to be made), an amount that is greater than the amount, on a net after after-tax basis, that you the Executive would be entitled to retain upon receipt of the Reduced Amount. Unless the Company Board and you the Executive otherwise agree in writing, any determination required under this Section 17 paragraph 22 shall be made in writing in good faith by the Accounting FirmAccountants in a timely manner and shall be binding on the parties absent manifest error. In the event of a reduction of benefits Payments hereunder, benefits the Payments shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. order determined by the Accountants that results in the greatest economic benefit to the Executive in a manner that would not result in subjecting the Executive to additional taxation under Section 409A. For purposes of making the calculations required by this Section 17paragraph 22, the Accounting Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, Code and other applicable legal authority. The Company Board and you the Executive shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require in order to make a determination under this Section 17paragraph 22, and the Company shall bear the cost of all fees charged by the Accounting Firm charges Accountants in connection with any calculations contemplated by this Section 17paragraph 22. In connection with making determinations under this Section 17To the extent requested by the Executive, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate with the Executive in good faith in valuing, and the valuation Accountants shall value, services to be provided by the Executive (including the Executive refraining from performing services pursuant to a covenant not to compete) before, on or after the date of any the transaction which causes the application of Section 280G such servicesthat Payments in respect of such services may be considered to be “reasonable compensation” within the meaning of Section 280G. Notwithstanding the foregoing, including any non-competition provisions.if the transaction which causes the application of Section 280G occurs at a time during which Section 2(a)(i) of Q&A-6 of Treasury Regulation Section 1.280G would apply to the Executive, upon the request of the Executive, the Company shall use reasonable efforts to obtain the vote of equity holders described in Q&A-7 of Treasury Regulation Section 1.280G.

Appears in 1 contract

Samples: Employment Agreement (AGNC Investment Corp.)

Section 280G. (a) Notwithstanding anything contained in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminatedcontrary, unless otherwise provided in your Employment Agreement, in (i) to the event extent that any payments, distributions, benefits payment or entitlements distribution of any type to or for the benefit of Eisenstadt 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 you 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 Eisenstadt would receive, after all taxes, if Eisenstadt received aggregate Payments equal (as valued under Section 280G of the Code) to only three times Eisenstadt’s “base amount” (within the meaning of Section 280G of the Code), less $1.00, then your 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 Eisenstadt shall be subject to the Excise Tax; . (b) The determination of whether the Payments shall be reduced as provided that in Section 21(a) hereof and the amount of such amounts reduction shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified made at Altimmune’s expense by an independent public accounting firm as may be designated of national reputation selected by the Company Altimmune (the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on a net after tax basis . The Accounting Firm shall provide its determination (including, without limitation, any excise taxes payable under Section 4999 of the Code“Determination”), an amount that is greater than the amounttogether with detailed supporting calculations and documentation, on a net to Altimmune and Eisenstadt within ten (10) days after tax basis, that you would be entitled to retain upon receipt Eisenstadt’s final day of the Reduced Amountemployment. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, If the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonabledetermines that no Excise Tax is payable by Eisenstadt with respect to the Payments, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and you it shall furnish Eisenstadt with an opinion reasonably acceptable to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order him that no Excise Tax will be imposed with respect to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such servicespayments and, including any non-competition provisionsabsent manifest error, such Determination shall be binding, final and conclusive upon Altimmune and Eisenstadt.

Appears in 1 contract

Samples: Employment Agreement (Altimmune, Inc.)

Section 280G. (a) Notwithstanding anything contained in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminatedcontrary, unless otherwise provided in your Employment Agreement, in (i) to the event extent that any payments, distributions, benefits payment or entitlements distribution of any type to or for the benefit of Xxxxx 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 you 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 Xxxxx would receive, after all taxes, if Xxxxx received aggregate Payments equal (as valued under Section 280G of the Code) to only three times Xxxxx’x “base amount” (within the meaning of Section 280G of the Code), less $1.00, then your 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 Xxxxx shall be subject to the Excise Tax; . (b) The determination of whether the Payments shall be reduced as provided that in Section 21(a) hereof and the amount of such amounts reduction shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified made at Altimmune’s expense by an independent public accounting firm as may be designated of national reputation selected by the Company Xxxxxxxxx (the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on a net after tax basis . The Accounting Firm shall provide its determination (including, without limitation, any excise taxes payable under Section 4999 of the Code“Determination”), an amount that is greater than the amounttogether with detailed supporting calculations and documentation, on a net to Xxxxxxxxx and Xxxxx within ten (10) days after tax basis, that you would be entitled to retain upon receipt Xxxxx’x final day of the Reduced Amountemployment. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, If the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonabledetermines that no Excise Tax is payable by Xxxxx with respect to the Payments, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and you it shall furnish Xxxxx with an opinion reasonably acceptable to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order him that no Excise Tax will be imposed with respect to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such servicespayments and, including any non-competition provisionsabsent manifest error, such Determination shall be binding, final and conclusive upon Xxxxxxxxx and Xxxxx.

Appears in 1 contract

Samples: Employment Agreement (Altimmune, Inc.)

Section 280G. (a) Notwithstanding anything contained in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminatedcontrary, unless otherwise provided in your Employment Agreement, in (i) to the event extent that any payments, distributions, benefits payment or entitlements distribution of any type to or for the benefit of Garg 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 you 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 Garg would receive, after all taxes, if Garg received aggregate Payments equal (as valued under Section 280G of the Code) to only three times Xxxx’x “base amount” (within the meaning of Section 280G of the Code), less $1.00, then your 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 Garg 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified made at Altimmune’s expense by an independent public accounting firm as may be designated of national reputation selected by the Company Altimmune (the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on a net after tax basis . The Accounting Firm shall provide its determination (including, without limitation, any excise taxes payable under Section 4999 of the Code“Determination”), an amount that is greater than the amounttogether with detailed supporting calculations and documentation, on a net to Altimmune and Garg within ten (10) days after tax basis, that you would be entitled to retain upon receipt Xxxx’x final day of the Reduced Amountemployment. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, If the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonabledetermines that no Excise Tax is payable by Garg with respect to the Payments, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and you it shall furnish Garg with an opinion reasonably acceptable to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order him that no Excise Tax will be imposed with respect to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such servicespayments and, including any non-competition provisionsabsent manifest error, such Determination shall be binding, final and conclusive upon Altimmune and Garg.

Appears in 1 contract

Samples: Employment Agreement (Altimmune, Inc.)

Section 280G. ​ (i) Notwithstanding anything contained in this Award Agreement to the contrary contrary, to the extent that the payments and regardless of whether benefits provided under this Award Agreement has otherwise expired and benefits provided to, or terminatedfor the benefit of, unless otherwise provided in your Employment Agreement, in Employee under any other Company plan or agreement (such payments or benefits are collectively referred to as the event that any payments, distributions, benefits or entitlements of any type payable to you (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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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), an amount the Benefits shall be reduced (but not below zero) if and to the extent that is greater than a reduction in the Benefits would result in Employee retaining a larger amount, on a net after an after-tax basisbasis (taking into account federal, that you would be entitled to retain upon receipt state and local income taxes and the Excise Tax), than if Employee received all of the Reduced Benefits (such reduced amount is referred to hereinafter as the “Limited Benefit Amount”). Unless Employee shall have given prior written notice specifying a different order to the Company and you otherwise agree in writingto effectuate the Limited Benefit Amount, any determination required under this such notice consistent with the requirements of Section 17 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Company shall be made in writing in good faith by reduce or eliminate the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced Benefits by first reducing or eliminating the portion of the CIC Benefits that amounts which are payable under this Award Agreement and from any cash severance, then from any payment in respect of an equity award that is not covered by reducing Treas. Reg. Section 1.280G-1 Q/A-24(b) or eliminating the portion (c), then from any payment in respect of the CIC Benefits an equity award that are payable in cash and then is covered by reducing or eliminating the non-cash portion of the CIC BenefitsTreas. Reg. Section 1.280G-1 Q/A-24(c), in each case, case in reverse order beginning with payments or benefits which are to be paid the furthest farthest in time from the futureDetermination (as defined below). For purposes Any notice given by Employee pursuant to the preceding sentence shall take precedence over the provisions of making any other plan, arrangement or agreement governing Employee’s rights and entitlements to any benefits or compensation. (ii) A determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and the amount of such Limited Benefit Amount 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 and acceptable to Employee (the “Firm”) at the Company’s expense. The Firm shall provide its determination (the “Determination”), together with detailed supporting calculations required by this Section 17, and documentation to the Accounting Firm may make reasonable assumptions Company and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application Employee within ten business days of the Codedate of termination of Employee’s employment, and if applicable, or such other applicable legal authority. The Company and you shall furnish to the Accounting Firm such information and documents time as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and requested by the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17or Employee. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 1 contract

Samples: Employment Agreement (Priveterra Acquisition Corp.)

Section 280G. Notwithstanding anything in this Award Agreement or your Employment Agreement [(including without limitation Section 5(g))] to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.]

Appears in 1 contract

Samples: Performance Based Restricted Stock Unit Award Agreement (XPO Logistics, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, payments or benefits or entitlements of any type otherwise payable to you Executive (“CIC Benefits”) (i1) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii2) but for this paragraph Section 9(f), would be subject to the excise tax imposed by Section 4999 of the Code, then such payments and benefits shall be either (x) delivered in full, or (y) delivered as to such lesser extent that would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income 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 after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such payments and benefits may be taxable under Section 4999 of the Code. Any reduction in payments and/or benefits required by this provision shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for equity awards. If two or more equity awards are granted on the same date, each award shall be reduced on a pro-rata basis. The Company and Executive agree that (A) any payments and benefits to which Executive is entitled pursuant to Section 9 are compensation for Executive’s compliance with the restrictive provisions of Section 12 and (B) the Company shall make reasonable efforts to mitigate the payments and benefits that would be subject to the excise tax imposed by Section 4999 of the Code (and to maximize the “Excise Tax”), then your 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 Taxnet after-tax proceeds received by Executive; provided that such amounts shall actions do not be so reduced if result in payment of any increased compensation to the Company determinesExecutive, based on the advice of Golden Parachute Tax Solutions LLC, do not provide for any gross-up or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on a net after tax basis (including, without limitation, any indemnity for potential excise taxes payable under Section 4999 of and do not reduce the Code), an amount that payments and benefits to which Executive is greater than the amount, on a net after tax basis, that you would be otherwise entitled (except as required pursuant to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions9(f)).

Appears in 1 contract

Samples: Employment Agreement (Cheniere Energy Inc)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in (a) In the event that the benefits provided to the Employee under this Agreement when combined with any payments, distributions, other severance and other benefits or entitlements of any type otherwise payable to you Employee (collectively the CIC Severance Benefits”) ), if any, (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph Agreement, Employee would be subject to the excise tax imposed by Section 4999 of the Code, then Employee’s benefits under this Agreement will be either: (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such Severance Benefits being subject to excise tax under Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits shall be reduced to such lesser 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 Employee on an after-tax basis, of the greatest amount (the “Reduced Amount”) of Severance Benefits, notwithstanding that would result in no all or some 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as Severance Benefits may be designated by the Company (the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable taxable under Section 4999 of the CodeCodeIf a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (1) reduction of cash payments in reverse chronological order (i.e., the cash payment owed on the latest date following the occurrence of the event triggering the excise tax will be the first cash payment to be reduced), an amount (2) cancellation of equity awards granted within the twelve-month period prior to a “change of control” (as determined under Code Section 280G) that is greater than are deemed to have been granted contingent upon the amountchange of control (as determined under Code Section 280G), on a net after tax basis, that you would be entitled to retain upon receipt in the reverse order of date of grant of the Reduced Amountawards (i.e., the most recently granted equity awards will be cancelled first), (3) cancellation of accelerated vesting of equity awards in the reverse order of date of grant of the awards (i.e., the vesting of the most recently granted equity awards will be cancelled first) and (4) reduction of continued employee benefits in reverse chronological order (i.e., the benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first benefit to be reduced). In no event will Employee have any discretion with respect to the ordering of payment reductions. (b) Unless the Company and you Employee otherwise agree in writing, any determination required under this Section 17 shall paragraph 9 will be made in writing in good faith by the Accounting Firm. In Company’s independent public accountants immediately prior to the event Change of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating Control (the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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“Accountants”). For purposes of making the calculations required by this Section 17paragraph 9, the Accounting Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Company and you shall Employee will furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and paragraph. The Company will bear all costs the Company shall bear the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17paragraph 9. In connection The Accountants shall provide their determination (the “Determination”), together with making determinations under this Section 17detailed supporting calculations and documentation, to the Accounting Firm shall take into account Company and the value Employee within 10 days after the first of any reasonable compensation for services the following events to be rendered by you before or after occur and as a result cause a distribution of the Severance Benefits: (A) the Change of Control, including any non-competition provisions that may apply to you 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) and (B) Employees’s final day of employment. If the Accountants determine that no Excise Tax is payable by the Employee with respect to the Severance Benefits, it shall furnish the Employee with an opinion to the Company shall cooperate in the valuation of that no Excise Tax will be imposed with respect to any such servicespayments and, including any non-competition provisionsabsent manifest error, such Determination shall be binding, final and conclusive upon the Company and the Employee.

Appears in 1 contract

Samples: Performance Based Restricted Stock Unit Agreement (Tibco Software Inc)

Section 280G. (a) Notwithstanding anything in this Award Employment Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementcontrary, in the event that any paymentsthe Company's independent public accountants (the "Accountants") shall determine that receipt of all payments or benefits made or provided by the Company or its affiliated companies in the nature of compensation to or for Employee's benefit (each, distributionsa "Payment"), benefits whether payable or entitlements of any type payable to you (“CIC Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Codebe provided pursuant to this Employment Agreement or otherwise, and (ii) but for this paragraph including, without limitation, the post-termination payments and benefits provided pursuant to Section 9 and the restricted shares provided pursuant to Section 14, would be subject Employee to the excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall be reduced to the Reduced Amount (as defined below). (b) If the Accountants determine that aggregate Payments should be reduced to the Reduced Amount, the Company shall promptly give Employee notice to that effect and a copy of the detailed calculation thereof. Any reduction of the Payments shall be made in such a manner as will provide Employee with the greatest Net After-Tax Receipt, as defined below. (c) As a result of the uncertainty in the application of Section 4999 of the Code (at the “Excise Tax”)time of the initial determination by the Accountants hereunder, then your CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”) it is possible 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated Payments will have been made by the Company to or for the benefit of Employee which should not have been so made (the “Accounting Firm”"Overpayment"), or that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless additional amounts which will have not been paid or distributed by the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by to or for the Accounting Firm. In the event benefit of a reduction of benefits hereunder, benefits shall be reduced by first reducing Employee could have been so paid or eliminating the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitsdistributed ("Underpayment"), in each case, consistent with the calculation of the Reduced Amount hereunder. In the event that the Accountants, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or Employee which the Accountants believe has a high probability of success, determine that an Overpayment has been made, Employee shall pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in reverse order beginning with payments or benefits which are to be paid the furthest in the future. For purposes of making the calculations required by this Section 17, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application 7872(f)(2) of the Code; provided, and other applicable legal authority. The Company and you however, that no amount shall furnish be payable by Employee to the Accounting Firm Company if and to the extent such information payment would not either reduce the amount on which Employee is subject to tax under Section 1 and documents as Section 4999 of the Accounting Firm may reasonably require in order to make Code or generate a determination under this Section 17refund of such taxes. In the event that the Accountants determine that an Underpayment has occurred, and any such Underpayment shall be promptly paid by the Company shall bear to or for the cost benefit of all fees Employee together with interest at the Accounting Firm charges applicable federal rate provided for in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, 7872(f)(2) of the Accounting Firm shall take into account Code. (d) The following terms have the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.meanings set forth below:

Appears in 1 contract

Samples: Merger Agreement (Prospect Acquisition Corp)

Section 280G. (a) Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementcontrary, in the event that any payments, distributions, benefits or entitlements the Accounting Firm (as defined below) shall determine that receipt of any type payable all Payments (as defined below) would subject the Executive to you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm shall determine whether some amount of Agreement Payments meets the definition of Reduced Amount (as defined below). If the Accounting Firm determines that there is a Reduced Amount, then the aggregate Agreement Payments (as defined below) shall be reduced to such Reduced Amount. (b) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced to the Reduced Amount, Bancorp, Bank or one of its subsidiaries shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof, and the Executive may make reasonable assumptions then elect, in his sole discretion, which and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning how much of the application Agreement Payments shall be eliminated or reduced (as long as after such election the Present Value of the aggregate Agreement Payments equals the Reduced Amount); provided that the Executive shall not be permitted to elect to reduce any Agreement Payment that constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Code, and other applicable legal authorityshall advise Employer in writing of his election within ten days of his receipt of notice. The Company If no such election is made by the Executive within such ten-day period, Employer shall reduce the Agreement Payments in the following order: (1) by reducing benefits payable pursuant to Section 5(a)(i)(B), then (2) by reducing amounts payable pursuant to Section 5(a)(ii), then (3) by reducing amounts payable pursuant to Section 5(a)(iv), and you shall furnish then (4) by reducing amounts payable pursuant to Section 5(a)(iii). All determinations made by the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, 7 shall be binding upon Employer and the Company Executive and shall bear be made within 60 days of the cost Executive’s Date of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17Termination. In connection with making determinations under this Section 177, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you the Executive before or after the Change of Control, including any non-competition provisions that may apply to you the Executive, and the Company Employer shall cooperate in the valuation of any such services, including any non-competition noncompetition 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 Employer 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 that will have not been paid or distributed by Employer to or for the benefit of the Executive pursuant to this 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 Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against Employer or the Executive that the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, any such Overpayment paid or distributed by Employer to or for the benefit of the Executive shall be repaid by the Executive to Employer; 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 Employer 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 Accounting Firm in implementing the provisions of this Section 7 shall be borne by Employer.

Appears in 1 contract

Samples: Employment Agreement (Banc of California, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, benefits or entitlements of any type payable to you a Key Employee pursuant to this Agreement or otherwise (“CIC BenefitsPayments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Code, Code and (ii) but for this paragraph Section 18 would be subject to the excise tax imposed by Section 4999 of the Code or any comparable successor provisions (the “Excise Tax”), then your CIC Benefits shall the Key Employee’s Payments hereunder will be reduced either (x) provided to the Key Employee in full or (y) provided to the Key Employee as to such lesser amount (the “Reduced Amount”) that extent which would result in no portion of such benefits being subject to the Excise Tax; provided , whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax and any other applicable taxes, results in the receipt by the Key Employee, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such amounts shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as benefits may be designated by taxable under the Company (Excise Tax. In the event that the Payments are to be reduced pursuant to this Section 18, and none of such Payments are Accounting Firm”), that without such reduction you would be entitled deferred compensation” subject to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 409A of the Code), an amount that is greater than then the amount, on a net after tax basis, that you would be entitled reduction will occur in the manner elected by the Key Employee in writing prior to retain upon receipt the date of payment. If any Payment constitutes “deferred compensation” subject to Section 409A of the Reduced AmountCode or if the Key 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 the Key Employee and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made, until the reduction is achieved. Unless the Company and you the Key Employee otherwise agree in writing, any determination required under this Section 17 shall 18 will be made in writing in good faith by a nationally recognized accounting firm selected by the Accounting Firm. In Company (the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating “Accountants”) which will provide detailed supporting calculations both to the portion Company and the Key Employee within fifteen (15) business days of the CIC Benefits receipt of notice from the Company or the Key Employee that are payable under this Award Agreement and then by reducing or eliminating the portion there has been a payment that may be subject to Section 4999 of the CIC Benefits that are payable in cash Code, or such earlier time as is requested by the Company, and then by reducing or eliminating whose determination will be final, conclusive and binding upon the non-cash portion of Key Employee and the CIC Benefits, in each case, in reverse order beginning with Company for all purposes (and the Company will report such payments or benefits which are to be paid the furthest in the futureconsistently and will reasonably defend such calculations). For purposes of making the calculations required by this Section 1718, the Accounting Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Company and you shall the Key Employee agree to furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and provision. The Company will bear all costs the Company shall bear the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions18.

Appears in 1 contract

Samples: Change in Control Agreement (Fulton Financial Corp)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC Benefits”) (ia) constitute “parachute payments” within the meaning of Section 280G of the Code, and (iib) but for this paragraph would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your 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 Golden Parachute Tax Solutions LLC, or such other a nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 12 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 1712, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 1712, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 1712. In connection with making determinations under this Section 1712, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 1 contract

Samples: Performance Share Unit Award Agreement (GXO Logistics, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement If the present value of your Severance Benefits, either alone or together with other payments which you have the right to receive from the contrary and regardless of whether this Award Agreement has otherwise expired or terminatedCompany (the“Benefits”), unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC Benefits”) (i) would constitute a “parachute paymentspaymentwithin 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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writingagree, any determination required under this Section 17 section shall be made in writing in good faith by the Accounting FirmCompany’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 the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitspro rata, in each case, in reverse order beginning but with payments or benefits which are to be paid the furthest no change in the futuretime at which such Benefits shall be paid. For purposes of making the calculations required by this Section 17section, the Accounting Firm 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 you shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and the section. The Company shall bear all costs the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionssection.

Appears in 1 contract

Samples: Employment Agreement (Prokidney Corp.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, benefits or entitlements of any type payable to you Fxxxxx (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 6 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 your 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 Fxxxxx’x receipt on an after-tax basis of the greatest amount of the Total Payments, notwithstanding that such amounts shall not be so reduced if all or some portion of the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as Total Payments may be designated by subject to the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced AmountExcise Tax. Unless the Company and you Fxxxxx otherwise agree in writing, any determination required under this Section 17 10 shall be made in writing in good faith based on the advice of a nationally recognized accounting firm selected by the Accounting FirmCompany (with approval of Fxxxxx) (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 this Award Agreement Section 5 and then by reducing or eliminating the portion of the CIC Benefits any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash 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 futurekind). For purposes of making the calculations required by this Section 1710, the Accounting Firm 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 you Fxxxxx shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require in order to make a determination under this Section 1710, and the Company shall bear the cost of all fees the Accounting Firm charges Accountants charge in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions10.

Appears in 1 contract

Samples: Executive Employment Agreement (Blink Charging Co.)

Section 280G. Notwithstanding anything in If any payment or benefit that Employee may receive following a change of control of the Company, Employee’s termination of employment, or otherwise, whether or not payable or provided under this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC BenefitsPayment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, and the regulations and guidance thereunder (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 your 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 Tax or (B) the largest portion, up to and including the total amount, of the Payment, whichever of the amounts determined under (A) and (B), 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 Employee’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that such amounts shall not be so reduced if all or some portion of the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as Payment may be designated subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of outstanding equity awards; and reduction of employee benefits. In the event that acceleration of vesting of outstanding equity awards is to be reduced, such acceleration of vesting shall be undertaken in the reverse order of the date of grant of Employee’s outstanding equity awards. All calculations and determinations made pursuant this Section 6(i) will be made by an independent accounting or consulting firm or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureEmployee for all purposes. For purposes of making the calculations and determinations required by this the Section 176(i), the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 1 contract

Samples: Employment Agreement (Fresh Vine Wine, Inc.)

Section 280G. Notwithstanding anything in 1. If any payment or benefit Executive would receive under this Award Agreement Agreement, when combined with any other payment or benefit Executive receives pursuant to the contrary and regardless termination of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in Executive’s employment with the event that any payments, distributions, benefits or entitlements of any type payable to you Company (“CIC BenefitsPayment) (i) ), would constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, and (ii) would, but for this paragraph would sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits such Payment shall either be reduced to (A) delivered in full or (B) delivered in such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being the Payment would be subject to the Excise Tax; provided that , whichever of the foregoing results in the receipt by Executive of the greatest benefit on an after-tax basis (taking into account the applicable federal, state and local income taxes and the Excise Tax). 2. All determinations required to be made under this Section 5(f), including whether and to what extent the Payment shall be reduced and the assumptions to be utilized in arriving at such amounts determination, shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public made by a national independent accounting firm registered with the Public Company Accounting Oversight Board as may shall be designated by the Company (the “Accounting Firm”), that without . The Accounting Firm shall provide detailed supporting calculations both to Executive and the Company at such reduction you would be entitled to receive time as is requested by the Company. 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 the amount, on a net after tax basis, that you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 Accounting Firm shall be made in writing in good faith borne solely by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureCompany. For purposes of making the calculations required by this Section 175(f), the Accounting Firm 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. 3. To the extent any reduction of the Payment becomes necessary pursuant to this Section 5(f), payments or benefits included in the Payment shall be reduced or eliminated by applying the following principles in order: (A) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (B) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (C) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order or reduction or elimination would violate Section 409A of the Code, and other applicable legal authority. The Company and you then the reduction shall furnish to be made pro rata among the Accounting Firm such information and documents as payments or benefits included in the Accounting Firm may reasonably require in order to make a determination under this Section 17, and Payment (on the Company shall bear basis of the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the relative present value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsparachute payments).

Appears in 1 contract

Samples: Employment Agreement (Raytheon Technologies Corp)

Section 280G. Notwithstanding anything in this Award Agreement to (a) The Executive shall bear all expense of, and be solely responsible for, any Excise Tax (as defined below) imposed on the contrary and regardless of whether this Award Agreement has otherwise expired or terminatedExecutive; provided, unless otherwise provided in your Employment Agreementhowever, in the event that any paymentsthe Accounting Firm (as defined below) determines that receipt of all payments or distributions in the nature of compensation to or for the benefit of the Executive, distributions, benefits whether paid or entitlements of any type payable pursuant to you this Agreement or otherwise (the CIC BenefitsPayments”) would subject the Executive to tax under Section 4999 of the Code, then, after taking into account any reduction in the Payments provided by reason of Section 280G of the Code in any other plan, arrangement or agreement, the Accounting Firm shall determine whether the Payments shall be reduced to the Reduced Amount (as defined below). The Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Net After-Tax Receipt (as defined below) of unreduced aggregate Payments would be equal to or less than one-hundred percent (100%) of the Net After-Tax Receipt of the Reduced Amount. The provisions of this Section 8 shall supersede and control any conflicting Payments adjustment language in the Parachute Limitations provisions in Section 17 of the Company’s Amended and Restated 2015 Omnibus Incentive Plan, as amended from time to time, or any similar parachute limitations language in any other plan or agreement applicable to Executive. (b) If the Accounting Firm determines that aggregate Payments should be reduced to the Reduced Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section shall be binding upon the Company and the Executive and shall be made | as soon as reasonably practicable and in no event later than five (5) business days following the effective date of the applicable Change in Control, or such later date on which there has been a Payment. The reduction of the Payments, if applicable, shall be made in the following order: (i) reduction of cash payments, which will occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to be reduced; (ii) cancellation of accelerated vesting of equity awards, which will occur in the reverse order of the date of grant for such stock awards (i.e., the vesting of the most recently granted stock awards will be reduced first); and (iii) reduction of other employee benefits, which will occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced; provided, however, that no reduction of a Payment that is nonqualified deferred compensation subject to Section 409A of the Code shall be made to the extent that such reduction would result in any other payment or benefit being deemed a substitute (within the meaning of Section 1.409A-3(f) of the Treasury Regulations) for the forfeited amount by reason of such other payment or benefit having a different time or form of payment. With respect to each of clauses (i)-(iii), in the case of any Payments that constitute deferred compensation subject to Section 409A, the reduction will occur first as to amounts that are not deferred. If two or more of the same type of awards are granted on the same date, each award will have their acceleration of vesting reduced on a pro-rata basis. In no event will the Executive have any discretion with respect to the ordering of Payment reductions. All fees and expenses of the Accounting Firm in implementing the provisions of this Section shall be borne by the Company. (c) 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 the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a parachute paymentspayment” within the meaning of Section 280G 280G(b) of the Code shall be taken into account, (ii) no portion of the Payments shall be taken into account which, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Payments shall be taken into account which, in the opinion of Accounting Firm, constitutes 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 (the “Excise Tax”), then your CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”as defined in Section 280G(b)(3) 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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)) allocable to such reasonable compensation, an amount that is greater than and (iii) the amount, on a net after tax basis, that you would value of any non-cash benefit or any deferred payment or benefit included in the Payments shall be entitled to retain upon receipt determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Reduced Amount. Unless the Code. (d) The Company and you otherwise agree the Executive shall provide the Accounting Firm access to copies of any books, records, and documents in writing, any determination required under this Section 17 shall be made in writing in good faith their possession as reasonably requested by the Accounting Firm. In , and otherwise cooperate with the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating Accounting Firm in connection with the portion preparation and issuance of the CIC Benefits that are payable under determinations and calculations contemplated by this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureSection 8. For purposes of making the calculations required by this Section 178, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999. (e) For purposes of this Agreement, the Codeterm “Accounting Firm” shall mean a nationally recognized accounting firm, or actuarial, benefits or compensation consulting firm (with experience in performing the calculations regarding the applicability of Code Section 280G | and other applicable legal authority. The Company and you shall furnish to of the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this tax imposed by Code Section 17, and 4999) selected by the Company shall bear the cost of all fees the Accounting Firm charges immediately prior to a Change in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 1 contract

Samples: Employment Agreement (Four Corners Property Trust, Inc.)

Section 280G. (i) Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementcontrary, in the event it shall be determined that any paymentsbenefit, distributionspayment or distribution by the Company to or for the benefit of Executive (whether payable or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, benefits payments or entitlements of any type payable distributions are hereinafter referred to you (as CIC BenefitsPayments”) would, if paid, be subject to the excise tax (ithe “Excise Tax”) constitute imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the parachute payments” within Code”), then the meaning aggregate present value of the Payments shall be reduced (but not below zero) to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof to be subject to the Excise Tax and therefore nondeductible by the Company because 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 your CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made in the following order: (A) that would result in no portion first reducing the cash severance benefits (with cash severance benefits having different payment terms being reduced on a pro-rata basis); (B) then cancellation of such benefits being subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, accelerated vesting of performance-based equity awards (based on the advice reverse order of Golden Parachute the date of grant); (C) then cancellation of accelerated vesting of other equity awards (based on the reverse order of the date of grant); and (D) finally reduction of any other benefits or payments due to Executive (with benefits or payments in any group having different payment terms being reduced on a pro-rata basis. For purposes of this Section 5(g), present value shall be determined in accordance with Section 280G(d)(4) of the Code. (ii) All determinations required to be made under this Section 5(g), including whether an Excise Tax Solutions LLCwould otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Company and Executive (the “Determination Firm”) which shall provide detailed supporting calculations both to the Company and Executive within 20 calendar days of the receipt of notice from Executive that a Payment is due to be made, or such other nationally recognized certified public accounting firm earlier time as may be designated is requested by the Company. All 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. As a result of the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under uncertainty in the application of Section 4999 of the CodeCode at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 5(g) (“Underpayment”), an amount that is greater than the amount, on a net after tax basis, that you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefits, in each case, in reverse order beginning consistent with payments or benefits which are to be paid the furthest in the future. For purposes of making the calculations required to be made hereunder. The Determination Firm shall determine the amount of any Underpayment that has occurred and any such Underpayment shall be promptly paid by this the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 17, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application 7872(f)(2) of the Code, and other applicable legal authority. The Company and you shall furnish to but no later than March 15 of the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or year after the Change of Controlyear in which the Underpayment is determined to exist, including any non-competition provisions that may apply which is when the legally binding right to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsUnderpayment arises.

Appears in 1 contract

Samples: Employment Agreement (Journal Media Group, Inc.)

Section 280G. (a) Notwithstanding anything in any provision of this Award Agreement to the contrary and regardless of whether contrary, if any amount or benefit to be paid or provided under this Award Agreement has or otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you the Executive by the Employer (“CIC BenefitsCovered Payments”) (i) constitute would be an excess parachute paymentspayment,” within the meaning of Section 280G of the Code, and (ii) but for the application of this paragraph sentence, (“Parachute Payments”) then the Covered Payments will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such Covered Payments, as so reduced, constitutes 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 Covered Payments to be subject to provided, determined on an after-tax basis (taking into account the excise tax imposed by pursuant to Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits shall any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by the Executive or the Employer, the determination of whether any reduction in such Covered Payments is required pursuant to the preceding sentence will be reduced to such lesser amount made at the expense of the Employer by independent accountants selected by the Bank (the “Reduced AmountAccountants). In the event the Covered Payments are required to be reduced pursuant to this Section, the Covered Payments will be reduced by category in the following order: (a) cancellation of accelerated vesting of equity awards; (b) reduction or elimination of cash severance benefits that are subject to Code Section 409A; (c) reduction or elimination of cash severance benefits that are not subject to Code Section 409A; (d) reduction or elimination of any remaining portion of the Covered Payments that are subject to Code Section 409A; and (e) reduction or elimination of any remaining portion of the Covered Payments that are not subject to Code Section 409A. In the event that acceleration of vesting of equity award compensation is to be cancelled, such acceleration of vesting will be cancelled in the reverse order of the date of grant of the Executive’s equity awards. Within each other category, cash payments and payments with respect to any equity award will be reduced pro rata based on the portion of cash or other payment with respect to the Covered Payments, in each case beginning with payments that would result otherwise be made last in time; provided that in no event shall the cash portion of such benefits being the Covered Payments be less than the amount of federal and state income tax withholding owed by the Executive with respect to the Covered Payments. (b) Sections 7, 8 and 9 of this Agreement contain covenants of the 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 the Executive is deemed eligible to receive Covered Payments under this Agreement that could be subject to the Excise Tax; provided , the Employer shall seek a valuation from the Accountants to determine the value of the covenants contained in Sections 7, 8 and 9 of this Agreement and such amount shall be allocated to such arrangements and be excluded from treatment as a Parachute Payment. For the avoidance of doubt, it is the intention of this Agreement that such amounts shall the value assigned to the covenants contained in Sections 7, 8 and 9 of this Agreement by the Accountants not be so reduced if the Company determines, based on the advice considered a Parachute Payment for purposes of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company this Section 4.3. (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any c) Any determination required under this Section 17 4.3 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 authorityAccountants. The Company Employer and you the Executive shall furnish to provide the Accounting Firm Accountants with such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, 4.3. For purposes of making the calculations and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated determinations required by this Section 17. In connection with making determinations under this Section 174.3, the Accounting Firm 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 take into account be final and binding on the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you Employer and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsExecutive.

Appears in 1 contract

Samples: Employment Agreement (Oconee Financial Corp)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, benefits or entitlements of any type payable to you (“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 your 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(or its successor) and Executive agree, based on the advice of Golden Parachute Tax Solutions LLC, or such other an independent nationally recognized certified public accounting firm as may be designated engaged by the Company Company, that part or all of the consideration, compensation or benefits to be paid to or for the benefit of Executive under this Agreement constitute "parachute payments" under Section 280G(b)(2) of the Code ("Section 280G"), then either (a) or (b) below shall apply. (a) Except as provided in Section 21(b), 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 or for the benefit of Executive under any other plan, arrangement or agreement which constitute "parachute payments", calculated as provided under Section 280G, (collectively, the "Parachute Amount") exceeds 2.99 times Executive's "base amount", as defined in Section 280G(b)(3) (the “Accounting Firm”"Base Amount"), the amounts constituting "parachute payments" which would otherwise be payable to Executive or for Executive's benefit shall be reduced to the extent necessary so that the Parachute Amount is equal to 2.99 times the Base Amount (the "Reduced Amount"). (b) The Parachute Amount shall not be reduced as provided in Section 21(a) above if, based on the advice of such public accounting firm, without such reduction you Executive would be entitled to receive and retain, on a net after after-tax basis (including, without limitation, after imposition of 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 you Executive would be entitled to retain upon receipt of the Reduced Amount. Unless If the Company and you determination made above results in a reduction under Section 21(a) above of the payments that would otherwise agree be paid to or for the benefit of Executive, such reduction in writing, any determination required under this Section 17 payments shall be made first 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 writing a manner that would not result in good faith by the Accounting Firm. 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 subjecting Executive to additional taxation under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.409A.

Appears in 1 contract

Samples: Employment Agreement (Eplus Inc)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, benefits or entitlements of any type payable or provided by AGNC, the Company or any of their subsidiaries to you the Executive, whether or not payable in connection with this Agreement or upon a termination of employment (“CIC BenefitsPayments) ), (i) constitute “parachute payments” within the meaning of Section 280G of the CodeG, and (ii) but for this paragraph 22 would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits the Payments shall be reduced to such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits the Payments being subject to the Excise Tax; provided Tax; provided, however, that such amounts Payments shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other a nationally recognized certified public accounting firm as may be designated selected by the Company Board in good faith (the “Accounting FirmAccountants), ) determines that without such reduction you reduction, the 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, federal, state and local income taxes, social security and Medicare taxes and all other applicable taxes, determined by applying the highest marginal rate under Section 1 of the Code and under state and local tax laws which applied (or is likely to apply) to the Executive’s taxable income for the tax year in which the transaction which causes the application of Section 280G occurs, or such other rate(s) as the Accountants determine to be likely to apply to the Executive in the relevant tax year(s) in which any of the Payments are expected to be made), an amount that is greater than the amount, on a net after after-tax basis, that you the Executive would be entitled to retain upon receipt of the Reduced Amount. Unless the Company Board and you the Executive otherwise agree in writing, any determination required under this Section 17 paragraph 22 shall be made in writing in good faith by the Accounting FirmAccountants in a timely manner and shall be binding on the parties absent manifest error. In the event of a reduction of benefits Payments hereunder, benefits the Payments shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. order determined by the Accountants that results in the greatest economic benefit to the Executive in a manner that would not result in subjecting the Executive to additional taxation under Section 409A. For purposes of making the calculations required by this Section 17paragraph 22, the Accounting Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, Code and other applicable legal authority. The Company Board and you the Executive shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require in order to make a determination under this Section 17paragraph 22, and the Company shall bear the cost of all fees charged by the Accounting Firm charges Accountants in connection with any calculations contemplated by this Section 17paragraph 22. In connection with making determinations under this Section 17To the extent requested by the Executive, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate with the Executive in good faith in valuing, and the valuation Accountants shall value, services to be provided by the Executive (including the Executive refraining from performing services pursuant to a covenant not to compete) before, on or after the date of any the transaction which causes the application of Section 280G such servicesthat Payments in respect of such services may be considered to be “reasonable compensation” 18 within the meaning of Section 280G. Notwithstanding the foregoing, including any non-competition provisions.if the transaction which causes the application of Section 280G occurs at a time during which Section 2(a)(i) of Q&A-6 of Treasury Regulation Section 1.280G would apply to the Executive, upon the request of the Executive, the Company shall use reasonable efforts to obtain the vote of equity holders described in Q&A-7 of Treasury Regulation Section 1.280G.

Appears in 1 contract

Samples: Employment Agreement (AGNC Investment Corp.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether contained in this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in to the event extent that any paymentsof the payments and benefits provided for under this Agreement or any other agreement or arrangement between you and the Company (collectively, distributions, benefits or entitlements of any type payable to you (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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 your receipt on an amount that is greater than the amount, on a net after after-tax basis, that you 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 you and the Company and you otherwise agree in writing, any determination required under this Section 17 5(b) shall be made in writing in good faith by the Accounting Firm. In Company’s independent public accountants (the event of a reduction of benefits hereunder“Accountants”), benefits whose reasonable determination shall be reduced by first reducing or eliminating conclusive and binding upon you and the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureCompany for all purposes. For purposes of making the calculations required by this Section 175(b), the Accounting Firm 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, . You and other applicable legal authority. The the Company and you shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 175(b). If this Section 5(b) is applied to reduce an amount payable to the you, and the Company shall bear Internal Revenue Service successfully asserts that, despite the cost reduction, you have nonetheless received payments which are in excess of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions maximum amount that may apply could have been paid to you and without being subjected to any excise tax, then, unless it would be unlawful for the Company shall cooperate to make such a loan or similar extension of credit to you, you may repay such excess amount to the Company though such amount constitutes a loan to you made at the date of payment of such excess amount, bearing interest at 120% of the applicable federal rate (as determined under Section 1274(d) of the Code in the valuation respect of any such services, including any non-competition provisionsloan).

Appears in 1 contract

Samples: Employment Agreement (Nile Therapeutics, Inc.)

Section 280G. i. Notwithstanding anything contained in this Award Agreement to the contrary contrary, to the extent that the payments and regardless of whether benefits provided under this Award Agreement has otherwise expired and benefits provided to, or terminatedfor the benefit of, unless otherwise provided in your Employment Agreement, in Employee under any other Company plan or agreement (such payments or benefits are collectively referred to as the event that any payments, distributions, benefits or entitlements of any type payable to you (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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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), an amount the Benefits shall be reduced (but not below zero) if and to the extent that is greater than a reduction in the Benefits would result in Employee retaining a larger amount, on a net after an after-tax basisbasis (taking into account federal, that you would be entitled to retain upon receipt state and local income taxes and the Excise Tax), than if Employee received all of the Reduced Benefits (such reduced amount is referred to hereinafter as the “Limited Benefit Amount”). Unless Employee shall have given prior written notice specifying a different order to the Company and you otherwise agree in writingto effectuate the Limited Benefit Amount, any determination required under this such notice consistent with the requirements of Section 17 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Company shall be made in writing in good faith by reduce or eliminate the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced Benefits by first reducing or eliminating the portion of the CIC Benefits that amounts which are payable under this Award Agreement and from any cash severance, then from any payment in respect of an equity award that is not covered by reducing Treas. Reg. Section 1.280G-1 Q/A-24(b) or eliminating the portion (c), then from any payment in respect of the CIC Benefits an equity award that are payable in cash and then is covered by reducing or eliminating the non-cash portion of the CIC BenefitsTreas. Reg. Section 1.280G-1 Q/A-24(c), in each case, case in reverse order beginning with payments or benefits which are to be paid the furthest farthest in time from the futureDetermination (as defined below). For purposes Any notice given by Employee pursuant to the preceding sentence shall take precedence over the provisions of making any other plan, arrangement or agreement governing Employee’s rights and entitlements to any benefits or compensation. ii. A determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and the amount of such Limited Benefit Amount 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 and acceptable to Employee (the “Firm”) at the Company’s expense. The Firm shall provide its determination (the “Determination”), together with detailed supporting calculations required by this Section 17, and documentation to the Accounting Firm may make reasonable assumptions Company and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application Employee within ten (10) business days of the Codedate of termination of Employee’s employment, and if applicable, or such other applicable legal authority. The Company and you shall furnish to the Accounting Firm such information and documents time as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and requested by the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsEmployee.

Appears in 1 contract

Samples: Employment Agreement (Evolus, Inc.)

Section 280G. Notwithstanding anything (a) Anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementnotwithstanding, 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 you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm shall determine whether some amount of Agreement Payments meets the definition of “Reduced Amount.” If the Accounting Firm determines that there is a Reduced Amount, then the aggregate Agreement Payments shall be reduced to such Reduced Amount. (b) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced to the Reduced Amount, the Bank or the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof, and the Executive may make reasonable assumptions then elect, in her sole discretion, which and approximations concerning applicable taxes and may rely on reasonablehow much of the Agreement Payments shall be eliminated or reduced (as long as after such election the Present Value of the aggregate Agreement Payments equals the Reduced Amount); provided, good faith interpretations concerning that the application Executive shall not be permitted to elect to reduce any Agreement Payment that constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Code, and other applicable legal authorityshall advise the Bank or the Company in writing of her election within ten days of her receipt of notice. The If no such election is made by the Executive within such ten day period, the Bank or the Company shall reduce the Agreement Payments in the following order: (1) by reducing benefits payable pursuant to Section 5(a)(1)(B) of the Agreement and you shall furnish then (2) by reducing amounts payable pursuant to Section 5(a)(2) of the Agreement. All determinations made by the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 178 shall be binding upon the Bank, the Company and the Company Executive and shall bear be made within 60 days of the cost Executive’s Date of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17Termination. In connection with making determinations under this Section 178, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you the Executive before or after the Change of Control, including any non-competition provisions that may apply to you the Executive and the Bank and the Company shall cooperate in the valuation of 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 Bank or 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 have not been paid or distributed by the Bank or the Company to or for the benefit of the Executive pursuant to this 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 Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Bank, 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 Bank or the Company to or for the benefit of the Executive shall be repaid by the Executive to the Bank or the Company (as applicable) 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 Bank or 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 Accounting Firm in implementing the provisions of this Section 8 shall be borne by the Bank or the Company, as applicable.

Appears in 1 contract

Samples: Change of Control Employment Agreement (Suffolk Bancorp)

Section 280G. Notwithstanding anything in this Award Agreement to (a) The Executive shall bear all expense of, and be solely responsible for, any Excise Tax (as defined below) imposed on the contrary and regardless of whether this Award Agreement has otherwise expired or terminatedExecutive; provided, unless otherwise provided in your Employment Agreementhowever, in the event that any paymentsthe Accounting Firm (as defined below) determines that receipt of all payments or distributions in the nature of compensation to or for the benefit of the Executive, distributions, benefits whether paid or entitlements of any type payable pursuant to you this Agreement or otherwise (the CIC BenefitsPayments”) would subject the Executive to tax under Section 4999 of the Code, then, after taking into account any reduction in the Payments provided by reason of Section 280G of the Code in any other plan, arrangement or agreement, the Accounting Firm shall determine whether the Payments shall be reduced to the Reduced Amount (as defined below). The Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Net After-Tax Receipt (as defined below) of unreduced aggregate Payments would be equal to or less than one-hundred percent (100%) of the Net After-Tax Receipt of the Reduced Amount. The provisions of this Section 8 shall supersede and control any conflicting Payments adjustment language in the Parachute Limitations provisions in Section 17 of the Company’s Amended and Restated 2015 Omnibus Incentive Plan, as amended from time to time, or any similar parachute limitations language in any other plan or agreement applicable to Executive. (b) If the Accounting Firm determines that aggregate Payments should be reduced to the Reduced Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section shall be binding upon the Company and the Executive and shall be made as soon as reasonably practicable and in no event later than five (5) business days following the effective date of the applicable Change in Control, or such later date on which there has been a Payment. The reduction of the Payments, if applicable, shall be made in the following order: | (i) reduction of cash payments, which will occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to be reduced; (ii) cancellation of accelerated vesting of equity awards, which will occur in the reverse order of the date of grant for such stock awards (i.e., the vesting of the most recently granted stock awards will be reduced first); and (iii) reduction of other employee benefits, which will occur in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced; provided, however, that no reduction of a Payment that is nonqualified deferred compensation subject to Section 409A of the Code shall be made to the extent that such reduction would result in any other payment or benefit being deemed a substitute (within the meaning of Section 1.409A-3(f) of the Treasury Regulations) for the forfeited amount by reason of such other payment or benefit having a different time or form of payment. With respect to each of clauses (i)-(iii), in the case of any Payments that constitute deferred compensation subject to Section 409A, the reduction will occur first as to amounts that are not deferred. If two or more of the same type of awards are granted on the same date, each award will have their acceleration of vesting reduced on a pro-rata basis. In no event will the Executive have any discretion with respect to the ordering of Payment reductions. All fees and expenses of the Accounting Firm in implementing the provisions of this Section shall be borne by the Company. (c) 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 the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a parachute paymentspayment” within the meaning of Section 280G 280G(b) of the Code shall be taken into account, (ii) no portion of the Payments shall be taken into account which, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Payments shall be taken into account which, in the opinion of Accounting Firm, constitutes 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 (the “Excise Tax”), then your CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”as defined in Section 280G(b)(3) 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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)) allocable to such reasonable compensation, an amount that is greater than and (iii) the amount, on a net after tax basis, that you would value of any non-cash benefit or any deferred payment or benefit included in the Payments shall be entitled to retain upon receipt determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Reduced Amount. Unless the Code. (d) The Company and you otherwise agree the Executive shall provide the Accounting Firm access to copies of any books, records, and documents in writing, any determination required under this Section 17 shall be made in writing in good faith their possession as reasonably requested by the Accounting Firm. In , and otherwise cooperate with the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating Accounting Firm in connection with the portion preparation and issuance of the CIC Benefits that are payable under determinations and calculations contemplated by this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureSection 8. For purposes of making the calculations required by this Section 178, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999. (e) For purposes of this Agreement, the Codeterm “Accounting Firm” shall mean a nationally recognized accounting firm, or actuarial, benefits or compensation consulting firm (with experience in performing the calculations regarding the applicability of Code Section 280G and other applicable legal authority. The Company and you shall furnish to of the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this tax imposed by Code Section 17, and 4999) selected by the Company shall bear the cost of all fees the Accounting Firm charges immediately prior to a Change in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 1 contract

Samples: Employment Agreement (Four Corners Property Trust, Inc.)

Section 280G. Notwithstanding anything contained in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementcontrary, in the event that any paymentsthe payments and benefits provided pursuant to this Agreement, distributions, together with all other payments and benefits received or entitlements of any type payable to you be received by Executive (“CIC BenefitsPayments) (i) ), constitute “parachute payments” within the meaning of Code Section 280G of the CodeG, and (ii) and, but for this paragraph Section 4, would be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits the Payments shall be reduced made to Executive either (i) in full or (ii) as to such lesser amount (the “Reduced Amount”) that as 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 the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the a Accounting FirmReduced Payment”), that without such reduction you would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 whichever of the Code)foregoing amounts, taking into account applicable federal, state and local income taxes and the -3- Excise Tax, results in Executive’s receipt on an amount that is greater than the amount, on a net after after-tax basis, that you would be entitled to retain upon receipt of the greatest amount of benefits, notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. If a Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required Payment is to be made under this Section 17 shall section, reduction of Payments will occur in the following order: reduction of cash payments, then cancellation of equity-based payments and accelerated vesting of equity awards, and then reduction of employee benefits. If accelerated vesting of equity awards is to be made reduced, such acceleration of vesting will be cancelled in writing in good faith by the Accounting Firmreverse order of the date of grant. In the event of a that cash payments or other benefits are reduced, such reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefits, in each case, occur in reverse order beginning with the payments or and benefits which are to be paid furthest away in time. All determinations required to be made under this Section 4 (including whether any of the furthest in Payments are parachute payments and whether to make a Reduced Payment) will be made by an independent accounting firm selected by the futureCompany. For purposes of making the calculations required by this Section 17section, the Accounting Firm accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonablereasonably, good faith interpretations concerning the application of the Code, Code Sections 280G and other applicable legal authority4999. The Company and you shall furnish to will bear the Accounting Firm such information and documents as costs that the Accounting Firm accounting firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges incur in connection with any the calculations contemplated by this Section 174. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to The accounting firm’s determination will be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you binding on both Executive and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsabsent manifest error. 5.

Appears in 1 contract

Samples: Severance and Change in Control Agreement (ChargePoint Holdings, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“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 your 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 Golden Parachute Tax Solutions Compensation & Benefits Advisory Services, LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 15 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 1715, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 1715, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 1715. In connection with making determinations under this Section 1715, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.. [Signature Page Follows] The parties have duly executed this Award Agreement as of the date first written above. XPO Logistics, inc. by Xxxxxx Xxxxxx Chief Human Resources Officer

Appears in 1 contract

Samples: Cash Long Term Incentive Award Agreement (XPO Logistics, Inc.)

Section 280G. (i) Notwithstanding anything contained in this Award Agreement to the contrary contrary, to the extent that the payments and regardless of whether benefits provided under this Award Agreement has otherwise expired and benefits provided to, or terminatedfor the benefit of, unless otherwise provided in your Employment Agreement, in Employee under any other Company plan or agreement (such payments or benefits are collectively referred to as the event that any payments, distributions, benefits or entitlements of any type payable to you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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), an amount the Benefits shall be reduced (but not below zero) if and to the extent that is greater than a reduction in the Benefits would result in Employee retaining a larger amount, on a net after an after-tax basisbasis (taking into account federal, that you would be entitled to retain upon receipt state and local income taxes and the Excise Tax), than if Employee received all of the Reduced Benefits (such reduced amount is referred to hereinafter as the "Limited Benefit Amount"). Unless Employee shall have given prior written notice specifying a different order to the Company and you otherwise agree in writingto effectuate the Limited Benefit Amount, any determination required under this such notice consistent with the requirements of Section 17 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Company shall be made in writing in good faith by reduce or eliminate the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced Benefits by first reducing or eliminating the portion of the CIC Benefits that amounts which are payable under this Award Agreement and from any cash severance, then from any payment in respect of an equity award that is not covered by reducing Treas. Reg. Section 1.280G-1 Q/A-24(b) or eliminating the portion (c), then from any payment in respect of the CIC Benefits an equity award that are payable in cash and then is covered by reducing or eliminating the non-cash portion of the CIC BenefitsTreas. Reg. Section 1.280G-1 Q/A-24(c), in each case, case in reverse order beginning with payments or benefits which are to be paid the furthest farthest in time from the futureDetermination (as defined below). For purposes Any notice given by Employee pursuant to the preceding sentence shall take precedence over the provisions of making any other plan, arrangement or agreement governing Employee’s rights and entitlements to any benefits or compensation. (ii) A determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and the amount of such Limited Benefit Amount 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 and acceptable to Employee (the "Firm") at the Company’s expense. The Firm shall provide its determination (the "Determination"), together with detailed supporting calculations required by this Section 17, and documentation to the Accounting Firm may make reasonable assumptions Company and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application Employee within ten (10) business days of the Codedate of termination of Employee’s employment, and if applicable, or such other applicable legal authority. The Company and you shall furnish to the Accounting Firm such information and documents time as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and requested by the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsEmployee.

Appears in 1 contract

Samples: Employment Agreement (Evolus, Inc.)

Section 280G. Notwithstanding anything in this Award Agreement If any payment or benefit you would receive from the Company and its Subsidiaries or an acquiror pursuant to the contrary Urovant Sciences Ltd. 2017 Equity Incentive Plan, as Amended and regardless of whether this Award Agreement has Restated, or otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (a CIC BenefitsPayment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of 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 your CIC Benefits shall such Payment will be reduced equal to such lesser amount the Higher Amount (defined below). The “Higher Amount” will be either (x) the “Reduced Amount”) 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 amounts shall not be so reduced if Tax or (y) the Company determineslargest portion, based on up to and including the advice total, of Golden Parachute the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by (all computed at the Company (the “Accounting Firm”highest applicable marginal rate), that without such reduction you would be entitled to receive and retainresults in your 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, that you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing greater economic benefit notwithstanding that all or eliminating the some portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating Payment may be subject to the portion of the CIC Benefits that are payable Excise Tax. If a reduction in cash 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 constituting “parachute payments” is necessary so that the furthest Payment equals the Higher Amount, reduction will occur in the futuremanner that results in the greatest economic benefit for you. For purposes If more than one method of making reduction will result in the calculations required by same economic benefit, the items so reduced will be reduced pro rata. Notwithstanding the foregoing, any reduction shall comply with Section 409A including, but NOT LIMITED TO, THE ORDERING OF ANY SUCH REDUCTION. IN NO EVENT WILL THE COMPANY, ANY SUBSIDIARY OR ANY STOCKHOLDER BE LIABLE TO you for any amounts not paid as a result of the operation of this Section 17, the Accounting Firm 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 authority9. The Company and you shall furnish will use commercially reasonable efforts to cause the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order accounting or law firm engaged to make a determination under this Section 17the determinations hereunder to provide its calculations, and the Company shall bear the cost of all fees the Accounting Firm charges in connection together with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17detailed supporting documentation, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in within fifteen (15) calendar days after the valuation of any date on which the your right to a Payment is triggered (if requested at that time by you or the Company) or such services, including any non-competition provisionsother time as requested by you or the Company.

Appears in 1 contract

Samples: Executive Employment Agreement (Urovant Sciences Ltd.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-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. For purposes of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 1 contract

Samples: Performance Based Restricted Stock Unit Award Agreement (XPO Logistics, Inc.)

Section 280G. (i) Notwithstanding anything contained in this Award Agreement to the contrary contrary, to the extent that the payments and regardless of whether benefits provided under this Award Agreement has otherwise expired and benefits provided to, or terminatedfor the benefit of, unless otherwise provided in your Employment Agreement, in Employee under any other Company plan or agreement (such payments or benefits are collectively referred to as the event that any payments, distributions, benefits or entitlements of any type payable to you (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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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), an amount the Benefits shall be reduced (but not below zero) if and to the extent that is greater than a reduction in the Benefits would result in Employee retaining a larger amount, on a net after an after-tax basisbasis (taking into account federal, that you would be entitled to retain upon receipt state and local income taxes and the Excise Tax), than if Employee received all of the Reduced Benefits (such reduced amount is referred to hereinafter as the “Limited Benefit Amount”). Unless Employee shall have given prior written notice specifying a different order to the Company and you otherwise agree in writingto effectuate the Limited Benefit Amount, any determination required under this such notice consistent with the requirements of Section 17 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Company shall be made in writing in good faith by reduce or eliminate the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced Benefits by first reducing or eliminating the portion of the CIC Benefits that amounts which are payable under this Award Agreement and from any cash severance, then from any payment in respect of an equity award that is not covered by reducing Treas. Reg. Section 1.280G-1 Q/A-24(b) or eliminating the portion (c), then from any payment in respect of the CIC Benefits an equity award that are payable in cash and then is covered by reducing or eliminating the non-cash portion of the CIC BenefitsTreas. Reg. Section 1.280G-1 Q/A-24(c), in each case, case in reverse order beginning with payments or benefits which are to be paid the furthest farthest in time from the futureDetermination (as defined below). For purposes Any notice given by Employee pursuant to the preceding sentence shall take precedence over the provisions of making any other plan, arrangement or agreement governing Employee’s rights and entitlements to any benefits or compensation. (ii) A determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and the amount of such Limited Benefit Amount 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 and acceptable to Employee (the “Firm”) at the Company’s expense. The Firm shall provide its determination (the “Determination”), together with detailed supporting calculations required by this Section 17, and documentation to the Accounting Firm may make reasonable assumptions Company and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application Employee within ten business days of the Codedate of termination of Employee’s employment, and if applicable, or such other applicable legal authority. The Company and you shall furnish to the Accounting Firm such information and documents time as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and requested by the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsEmployee.

Appears in 1 contract

Samples: Employment Agreement (Priveterra Acquisition Corp.)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in In the event that any payments, distributions, payments or benefits or entitlements of any type otherwise payable to you (“CIC Benefits”) Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this paragraph Section 6(g), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you 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 you Executive otherwise agree in writing, any determination required under this Section 17 shall 6(g) will be made in writing in good faith by a nationally-recognized accounting firm selected jointly by the Accounting Firm. In Company and Executive (the event of a reduction of benefits hereunder“Accountants”), benefits shall whose determination will be reduced by first reducing or eliminating conclusive and binding upon Executive and the portion of the CIC Benefits that are payable under this Award Agreement Company and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureits subsidiaries for all purposes. For purposes of making the calculations required by this Section 176(g), the Accounting Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, and other applicable legal authority. The Company and you shall Executive agree to furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and provision. The Company will bear all costs the Company shall bear the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17provision. 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-based awards; and (3) reduction of other benefits paid or provided to Executive. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value event that acceleration of any reasonable compensation for services vesting of equity-based awards is to be rendered by you before or after the Change reduced, such acceleration of Control, including any non-competition provisions that may apply to you and the Company shall cooperate vesting will be cancelled in the valuation reverse order of any such servicesthe date of grant for equity-based awards. If two or more equity-based awards are granted on the same date, including any noneach award will be reduced on a pro-competition provisionsrata basis.

Appears in 1 contract

Samples: Employment Agreement (NCR Atleos Corp)

Section 280G. 8.1 Notwithstanding anything any other provision of this Agreement, except as set forth in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment AgreementSection 8.2, in the event that any paymentsthe Company undergoes a “Change in Ownership or Control” (as defined below), distributions, benefits or entitlements the Company shall not be obligated to provide to the Executive a portion of any type payable “Contingent Compensation Payments” (as defined below) that the Executive would otherwise be entitled to you receive to the extent necessary to eliminate any “excess parachute payments” (as defined in Code Section 280G(b)(l)) for the Executive. For purposes of this Section 8, the Contingent Compensation Payments so eliminated shall be referred to as the CIC BenefitsEliminated Payments” and the aggregate amount (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Amount.) 8.2 Notwithstanding the provisions of 8.1, no such reduction in Contingent Compensation Payments shall be made if (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and Eliminated Amount (computed without regard to this sentence) exceeds (ii) but for this paragraph 110% of the aggregate present value (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-31 and Q/A-32 or any successor provisions) of the amount of any additional taxes that would be subject incurred by the Executive if the Eliminated Payments (determined without regard to this sentence) were paid to him or her (including, state and federal income taxes on the Eliminated Payments, the excise tax imposed by Section 4999 of the Code payable with respect to all of the Contingent Compensation Payments in excess of the Executive’s “base amount” (the “Excise Tax”), then your CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”as defined in Section 280G(b)(3) 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 amountand any withholding taxes). The override of such reduction in Contingent Compensation Payments pursuant to this Section 8.2 shall be referred to as a “Section 8.2 Override.” For purpose of this paragraph, on a net after tax basis, that you if any federal or state income taxes would be entitled attributable to retain upon the receipt of any Eliminated Payment, the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 amount of such taxes shall be made in writing in good faith computed by multiplying the amount of the Eliminated Payment by the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced maximum combined federal and state income tax rate provided by first reducing or eliminating the portion of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. law. 8.3 For purposes of making the calculations required by this Section 17, 8 the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning following terms shall have the application of the Code, and other applicable legal authority. The Company and you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.following respective meanings:

Appears in 1 contract

Samples: Employment Agreement (Achillion Pharmaceuticals Inc)

Section 280G. Notwithstanding anything contained in this Award Agreement to the contrary contrary, to the extent that the payments and regardless of whether benefits provided under this Award Agreement has otherwise expired and benefits provided to, or terminatedfor the benefit of, unless otherwise provided in your Employment Agreement, in Executive under any other Company plan or agreement (such payments or benefits are collectively referred to as the event that any payments, distributions, benefits or entitlements of any type payable to you (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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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), an amount the Benefits shall be reduced (but not below zero) if and to the extent that is greater than a reduction in the Benefits would result in Executive retaining a larger amount, on a net after an after-tax basisbasis (taking into account federal, that you would be entitled to retain upon receipt state and local income taxes and the Excise Tax), than if Executive received all of the Reduced Benefits (such reduced amount if referred to hereinafter as the “Limited Benefit Amount”). Unless the Executive shall have given prior written notice specifying a different order to the Company and you otherwise agree in writingto effectuate the Limited Benefit Amount, any determination required under this such notice consistent with the requirements of Section 17 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Company shall be made in writing in good faith by reduce or eliminate the Accounting Firm. In the event of a reduction of benefits hereunder, benefits shall be reduced Benefits by first reducing or eliminating the portion of the CIC Benefits that those payments or benefits which are payable under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are not payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitspayments, in each case, case in reverse order beginning with payments or benefits which are to be paid the furthest farthest in time from the futuredetermination by the Accountants described below. Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing Executive’s rights and entitlements to any benefits or compensation. A determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and the amount of such Limited Benefit Amount shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. The Accountants shall provide such determination, together with detailed supporting calculations and documentation to the Company and Executive within ten (10) business days of the date of termination of the Executive’s employment, if applicable, or such other time as requested by the Company or Executive (provided Executive reasonably believes that any of the Benefits may be subject to the Excise Tax), and if the Accounting Firm determines that no Excise Tax is payable by Executive with respect to any Benefits, it shall furnish Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to any such Benefits. For purposes of making the calculations required by this Section 17Section, the Accounting Firm 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 Code for which there is a “substantial authority” tax reporting position. The Company and you shall Executive will furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably require request in order to make a determination under this Section 17, and Section. The Company will bear all costs the Company shall bear the cost of all fees the Accounting Firm charges Accountants may reasonably incur in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsSection.

Appears in 1 contract

Samples: Employment Agreement (Cell Therapeutics Inc)

Section 280G. (a) Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementcontrary, 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 you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm shall determine whether some amount of Agreement Payments meets the definition of “Reduced Amount.” If the Accounting Firm determines that there is a Reduced Amount, then the aggregate Agreement Payments shall be reduced to such Reduced Amount. (b) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced to the Reduced Amount, the Company or one of its subsidiaries shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof, and the Executive may make reasonable assumptions then elect, in his sole discretion, which and approximations concerning applicable taxes and may rely on reasonablehow much of the Agreement Payments shall be eliminated or reduced (as long as after such election the Present Value of the aggregate Agreement Payments equals the Reduced Amount); provided, good faith interpretations concerning that the application Executive shall not be permitted to elect to reduce any Agreement Payment that constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Code, and other applicable legal authorityshall advise the Company in writing of his election within ten days of his receipt of notice. The If no such election is made by the Executive within such ten-day period, the Company shall reduce the Agreement Payments in the following order: (1) by reducing benefits payable pursuant to Section 5(a)(i)(B) of the Agreement, then (2) by reducing amounts payable pursuant to Section 5(a)(i)(C) of the Agreement, and you shall furnish then (3) by reducing amounts payable pursuant to Section 5(a)(ii). All determinations made by the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, 7 shall be binding upon the Company and the Company Executive and shall bear be made within 60 days of the cost Executive’s Date of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17Termination. In connection with making determinations under this Section 177, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you the Executive before or after the Change of Control, including any non-competition provisions that may apply to you the Executive and the Company shall cooperate in the valuation of 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 have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this 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 Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against 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; 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 Accounting Firm in implementing the provisions of this Section 7 shall be borne by the Company.

Appears in 1 contract

Samples: Employment Agreement (First Pactrust Bancorp Inc)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that If (i) any payments, distributions, benefits or entitlements of any type amounts payable to you (“CIC Benefits”) (i) constitute “under this Agreement or otherwise are characterized as excess parachute payments” within the meaning of payments pursuant to Section 280G 4999 of the Code, and (ii) but for this paragraph you thereby would be subject to any United States federal excise tax due to that characterization, then your termination benefits hereunder will be payable either in full or in a lesser amount, whichever would result, after taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 4999, in your receipt on an after- tax basis of the greatest amount of termination and other benefits. The determination of any reduction required pursuant to this section (including the determination as to which specific payments shall be reduced) shall be made by a nationally recognized accounting firm doing business in the United States which otherwise does not perform services for the Company (which will be chosen by the mutual agreement of you and Company, such services to be paid by the Company), and such determination shall be conclusive and binding upon the Company or any related corporation for all purposes. If required, the payments and benefits under this Agreement shall be reduced in the following order: (x) a pro rata reduction of (A) cash payments that are subject to Section 409A of the Code as deferred compensation and (the “Excise Tax”), then your CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”B) that would result in no portion of such benefits being cash payments not subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 409A of the Code), an amount ; (y) a pro rata reduction of (A) employee benefits that is greater than the amount, on a net after tax basis, that you would be entitled are subject to retain upon receipt Section 409A of the Reduced Amount. Unless Code as deferred compensation and (B) employee benefits not subject to Section 409A of the Company Code; and you otherwise agree in writing, any determination required under this (z) a pro rata cancellation of (A) accelerated vesting of stock and other equity-based awards that are subject to Section 17 shall be made in writing in good faith by 409A of the Accounting FirmCode as deferred compensation and (B) stock and other equity-based awards not subject to Section 409A of the Code. In the event that acceleration of a reduction vesting of benefits hereunderstock and other equity- based award compensation is to be reduced, benefits such acceleration of vesting shall be reduced by first reducing or eliminating cancelled in the portion reverse order of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion date of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion grant 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. For purposes of making the calculations required by this Section 17, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, your stock and other applicable legal authority. The Company and equity-based awards unless you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require elect in writing a different order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionscancellation.

Appears in 1 contract

Samples: Offer of Employment (Loxo Oncology, Inc.)

Section 280G. Notwithstanding anything in (a) If any payment or benefit you would receive under this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that when combined with any paymentsother payment or benefit you receive pursuant to a Change-in-Control (for purposes of this Section, distributions, benefits or entitlements of any type payable to you (a CIC BenefitsPayment”) (i) would constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and, and (ii) but for this paragraph would sentence, be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits such Payment shall be reduced to either: (i) the full amount of such Payment; or (ii) such lesser amount (the a “Reduced AmountPayment”) as would result in no portion of the Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employment taxes, income taxes and the Excise Tax, results in your receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. (b) With respect to Section 10(a), if there is more than one method of reducing the Reduced Payment amount that would result in no portion of such benefits the Payment being subject to the Excise Tax, then the Payment shall be reduced or eliminated in the following order: (i) cash payments; provided (ii) taxable benefits; (iii) nontaxable benefits; and (iv) accelerated vesting of equity awards in a manner that such amounts maximizes the amount to be received by you. Mxxxxx Xxxxxx Employment Agreement (c) The determination of whether Section 10(a)(i) or (ii) applies, and the calculation of the amount of the Reduced Payment if applicable, shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other performed by a nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you would be entitled . The Accounting Firm shall provide detailed supporting calculations 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless both the Company and you otherwise agree in writingwithin fifteen (15) business days of the receipt of notice from you that there has been a Payment, any determination required under this Section 17 shall be made in writing in good faith or such earlier time as is requested by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the CIC BenefitsCompany, in each case, in reverse order beginning with payments or benefits which are to a form that can be paid the furthest in the futurerelied upon for tax filing purposes. For purposes All fees and expenses of making the calculations required by this Section 17, the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account be borne solely by the value Company. (d) You may receive a Payment that is, in the aggregate, either more or less than the amount described in Section 10(a)(i) or (ii) (as applicable, an “Overpayment” or “Underpayment”). If it is finally determined by a court of any reasonable compensation for services competent jurisdiction pursuant to be rendered by you before or after the Change of Control, including any a final non-competition provisions appealable judgment, or the Internal Revenue Service, or by the Accounting Firm upon request by either the Company or you, that may apply an Overpayment or Underpayment has been made, then: (i) in the event of an Overpayment, you shall promptly repay the Overpayment to you the Company, together with interest on the Overpayment at the applicable federal rate from the date of your receipt of such Overpayment until the date of such repayment; and (ii) in the event of an Underpayment, the Company shall cooperate in promptly pay an amount equal to the valuation Underpayment to you, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to you had the provisions of any such services, including any non-competition provisionsSection 10(a)(ii) not been applied until the date of payment.

Appears in 1 contract

Samples: Employment Agreement (Quanterix Corp)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC Benefits”) (i) If any payment or benefit Executive would receive under this Agreement, when combined with any other payment or benefit Executive receives pursuant to the termination of Executive’s employment with the Company (“Payment”), would constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code, and (ii) would, but for this paragraph would sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits such Payment shall either be reduced to (A) delivered in full or (B) delivered in such lesser amount (the “Reduced Amount”) that would result in no portion of such benefits being the Payment would be subject to the Excise Tax; provided that , whichever of the foregoing results in the receipt by Executive of the greatest benefit on an after-tax basis (taking into account the applicable federal, state and local income taxes and the Excise Tax). (ii) All determinations required to be made under this Section 5(d), including whether and to what extent the Payment shall be reduced and the assumptions to be utilized in arriving at such amounts determination, shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public made by a national independent accounting firm registered with the Public Company Accounting Oversight Board as may shall be designated by the Company (the “Accounting Firm”), that without . The Accounting Firm shall provide detailed supporting calculations both to Executive and the Company at such reduction you would be entitled to receive time as is requested by the Company. 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 the amount, on a net after tax basis, that you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 Accounting Firm shall be made in writing in good faith borne solely by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureCompany. For purposes of making the calculations required by this Section 175(e), the Accounting Firm 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. (iii) To the extent any reduction of the Payment becomes necessary pursuant to this Section 5(e), payments or benefits included in the Payment shall be reduced or eliminated by applying the following principles in order: (A) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (B) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (C) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order or reduction or elimination would violate Section 409A of the Code, and other applicable legal authority. The Company and you then the reduction shall furnish to be made pro rata among the Accounting Firm such information and documents as payments or benefits included in the Accounting Firm may reasonably require in order to make a determination under this Section 17, and Payment (on the Company shall bear basis of the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the relative present value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionsparachute payments).

Appears in 1 contract

Samples: Employment Agreement (Raytheon Technologies Corp)

Section 280G. Notwithstanding anything (a) Anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementnotwithstanding, 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 you (“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 your 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 Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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. For purposes of making the calculations required by this Section 17, the Accounting Firm shall determine whether some amount of Agreement Payments meets the definition of “Reduced Amount.” If the Accounting Firm determines that there is a Reduced Amount, then the aggregate Agreement Payments shall be reduced to such Reduced Amount. (b) If the Accounting Firm determines that the aggregate Agreement Payments should be reduced to the Reduced Amount, the Bank or the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof, and the Executive may make reasonable assumptions then elect, the Executive’s sole discretion, which and approximations concerning applicable taxes and may rely on reasonablehow much of the Agreement Payments shall be eliminated or reduced (as long as after such election the Present Value of the aggregate Agreement Payments equals the Reduced Amount); provided, good faith interpretations concerning that the application Executive shall not be permitted to elect to reduce any Agreement Payment that constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Code, and other applicable legal authorityshall advise the Bank or the Company in writing of her election within ten days of her receipt of notice. The If no such election is made by the Executive within such ten-day period, the Bank or the Company shall reduce the Agreement Payments in the following order: (1) by reducing benefits payable pursuant to Section 5(a)(1)(B) of the Agreement and you shall furnish then (2) by reducing amounts payable pursuant to Section 5(a)(2) of the Agreement. All determinations made by the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 178 shall be binding upon the Bank, the Company and the Company Executive and shall bear be made within 60 days of the cost Executive’s Date of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17Termination. In connection with making determinations under this Section 178, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you the Executive before or after the Change of Control, including any non-competition provisions that may apply to you the Executive and the Bank and the Company shall cooperate in the valuation of 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 Bank or 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 have not been paid or distributed by the Bank or the Company to or for the benefit of the Executive pursuant to this 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 Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Bank, 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 Bank or the Company to or for the benefit of the Executive shall be repaid by the Executive to the Bank or the Company (as applicable) 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 Bank or 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 Accounting Firm in implementing the provisions of this Section 8 shall be borne by the Bank or the Company, as applicable.

Appears in 1 contract

Samples: Change of Control Employment Agreement (Suffolk Bancorp)

Section 280G. Notwithstanding anything in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that If (i) any payments, distributions, benefits or entitlements of any type amounts payable to you (“CIC Benefits”) (i) constitute “under this Agreement or otherwise are characterized as excess parachute payments” within the meaning of payments pursuant to Section 280G 4999 of the Code, and (ii) but for this paragraph you thereby would be subject to any United States federal excise tax due to that characterization, then your termination benefits hereunder will be payable either in full or in a lesser amount, whichever would result, after taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 4999, in your receipt on an after-tax basis of the greatest amount of termination and other benefits. The determination of any reduction required pursuant to this section (including the determination as to which specific payments shall be reduced) shall be made by a nationally recognized accounting firm doing business in the United States which otherwise does not perform services for the Company (which will be chosen by the mutual agreement of you and Company, such services to be paid by the Company), and such determination shall be conclusive and binding upon the Company or any related corporation for all purposes. If required, the payments and benefits under this Agreement shall be reduced in the following order: (x) a pro rata reduction of (A) cash payments that are subject to Section 409A of the Code as deferred compensation and (the “Excise Tax”), then your CIC Benefits shall be reduced to such lesser amount (the “Reduced Amount”B) that would result in no portion of such benefits being cash payments not subject to the Excise Tax; provided that such amounts shall not be so reduced if the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”), that without such reduction you would be entitled to receive and retain, on a net after tax basis (including, without limitation, any excise taxes payable under Section 4999 409A of the Code), an amount ; (y) a pro rata reduction of (A) employee benefits that is greater than the amount, on a net after tax basis, that you would be entitled are subject to retain upon receipt Section 409A of the Reduced Amount. Unless Code as deferred compensation and (B) employee benefits not subject to Section 409A of the Company Code; and you otherwise agree in writing, any determination required under this (z) a pro rata cancellation of (A) accelerated vesting of stock and other equity-based awards that are subject to Section 17 shall be made in writing in good faith by 409A of the Accounting FirmCode as deferred compensation and (B) stock and other equity-based awards not subject to Section 409A of the Code. In the event that acceleration of a reduction vesting of benefits hereunderstock and other equity-based award compensation is to be reduced, benefits such acceleration of vesting shall be reduced by first reducing or eliminating cancelled in the portion reverse order of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion date of the CIC Benefits that are payable in cash and then by reducing or eliminating the non-cash portion grant 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. For purposes of making the calculations required by this Section 17, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, your stock and other applicable legal authority. The Company and equity-based awards unless you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require elect in writing a different order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisionscancellation.

Appears in 1 contract

Samples: Offer of Employment (Loxo Oncology, Inc.)

Section 280G. (a) Notwithstanding anything contained in this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreementcontrary, in the event that any paymentsthe payments and benefits provided pursuant to this Agreement, distributions, together with all other payments and benefits received or entitlements of any type payable to you be received by Executive (“CIC BenefitsPayments) (i) ), constitute “parachute payments” within the meaning of Code Section 280G of the CodeG, and (ii) and, but for this paragraph Section 4, would be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then your CIC Benefits the Payments shall be reduced made to Executive either (i) in full or (ii) as to such lesser amount (the “Reduced Amount”) that as 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 the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as may be designated by the Company (the a Accounting FirmReduced Payment”), whichever of the foregoing amounts, taking into account 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 benefits, notwithstanding that without all or some portion of the Payments may be subject to the Excise Tax. For the avoidance of doubt, the Payments shall include acceleration of vesting of equity awards granted by Velodyne that vest based on service to Velodyne or any other member of the Velodyne Group and that accelerate in connection with a Change in Control of Velodyne, but only to the extent such reduction you would acceleration of vesting is deemed a parachute payment with respect to a Change in Control of Velodyne. (b) For purposes of determining whether to make a Reduced Payment, if applicable, Velodyne shall cause to be entitled to receive taken into account all federal, state and retain, on a net after tax basis (including, without limitation, any local income and employment taxes and excise taxes payable under applicable to the Executive (including the Excise Tax). If a Reduced Payment is made, Velodyne, and as applicable, all other members of the Velodyne Group, shall reduce or eliminate the Payments in the following order, unless (to the extent permitted by Section 4999 409A of the Code)) Executive elects to have the reduction in payments applied in a different order: (1) cancellation of accelerated vesting of options with no intrinsic value, an amount that is greater (2) reduction of cash payments, (3) cancellation of accelerated vesting of equity awards other than options, (4) cancellation of accelerated vesting of options with intrinsic value and (5) reduction of other benefits paid to the amount, on a net after tax basis, that you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting FirmExecutive. In the event that acceleration of a reduction vesting is reduced, such acceleration of benefits hereunder, benefits vesting shall be reduced by first reducing or eliminating cancelled in the portion reverse order of the CIC Benefits that are payable under this Award Agreement and then by reducing or eliminating the portion date of grant of the CIC Benefits Executive’s equity awards. In the event that cash payments or other benefits are payable in cash and then by reducing or eliminating the non-cash portion of the CIC Benefitsreduced, in each case, such reduction shall occur in reverse order beginning with payments or benefits which are to be paid farthest in time from the furthest in date of the futuredetermination. For avoidance of doubt, an option will be considered to have no intrinsic value if the exercise price of the shares subject to the option exceeds the fair market value of such shares. (c) All determinations required to be made under this Section 4 (including whether any of the Payments are parachute payments and whether to make a Reduced Payment) will be made by a nationally recognized independent accounting firm selected by Xxxxxxxx. For purposes of making the calculations required by this Section 17section, the Accounting Firm accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonablereasonably, good faith interpretations concerning the application of Code Sections 280G and 4999. Velodyne will bear the Code, and other applicable legal authority. The Company and you shall furnish to costs that the Accounting Firm such information and documents as the Accounting Firm accounting firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges incur in connection with any the calculations contemplated by this Section 174. The accounting firm’s determination will be binding on both Executive and Velodyne and the other members of the Velodyne Group, as applicable, absent manifest error. (d) As a result of uncertainty in the application of Sections 4999 and 280G of the Code at the time of the initial determination by the accounting firm hereunder, it is possible that payments will have been made by Xxxxxxxx or another member of the Velodyne Group which should not have been made (an “Overpayment”) or that additional payments which will not have been made by Velodyne or another member of the Velodyne Group could have been made (an “Underpayment”), consistent in each case with the calculation of whether and to what extent a Reduced Payment shall be made hereunder. In connection with making determinations under this Section 17either event, the Accounting Firm accounting firm shall take into account determine the value amount of any reasonable compensation for services the Underpayment or Overpayment that has occurred. In the event that the accounting firm determines that an Overpayment has occurred, the Executive shall promptly repay, or transfer, to be rendered by you before Velodyne or after such other member of the Change of ControlVelodyne Group, including any non-competition provisions that may apply to you and as applicable, the Company shall cooperate in the valuation amount of any such servicesOverpayment; provided, including however, that no amount shall be payable, or transferable, by the Executive to Velodyne or any non-competition provisionsother member of the Velodyne Group if and to the extent that such payment or transfer would not reduce the amount that is subject to taxation under Section 4999 of the Code. In the event that the accounting firm determines that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by Velodyne or such other member of the Velodyne Group, as applicable, to or for the benefit of the Executive, together with interest at the applicable federal rate provided in Section 7872(f)(2) of the Code. (e) If this Section 4 is applicable with respect to an Executive’s receipt of a Reduced Payment, it shall supersede any contrary provision of any plan, arrangement or agreement governing the Executive’s rights to the Payments.

Appears in 1 contract

Samples: Severance and Change in Control Agreement (Velodyne Lidar, Inc.)

Section 280G. Notwithstanding anything in If any payment or benefit that Employee may receive following a change of control of the Company, Employee’s termination of employment, or otherwise, whether or not payable or provided under this Award Agreement to the contrary and regardless of whether this Award Agreement has otherwise expired or terminated, unless otherwise provided in your Employment Agreement, in the event that any payments, distributions, benefits or entitlements of any type payable to you (“CIC BenefitsPayment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, and the regulations and guidance thereunder (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 your 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 Tax or (B) the largest portion, up to and including the total amount, of the Payment, whichever of the amounts determined under (A) and (B), 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 Employee’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that such amounts shall not be so reduced if all or some portion of the Company determines, based on the advice of Golden Parachute Tax Solutions LLC, or such other nationally recognized certified public accounting firm as Payment may be designated subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of outstanding equity awards; and reduction of employee benefits. In the event that acceleration of vesting of outstanding equity awards is to be reduced, such acceleration of vesting shall be undertaken in the reverse order of the date of grant of Employee’s outstanding equity awards. All calculations and determinations made pursuant this Section 5(i) will be made by an independent accounting or consulting firm or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel), that without such reduction you 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 you would be entitled to retain upon receipt of the Reduced Amount. Unless the Company and you otherwise agree in writing, any determination required under this Section 17 shall be made in writing in good faith by the Accounting Firm. 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 under this Award Agreement and then by reducing or eliminating the portion of the CIC Benefits that are payable in cash 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 futureEmployee for all purposes. For purposes of making the calculations and determinations required by this Section 175(i), the Accounting Firm 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 you shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably require in order to make a determination under this Section 17, and the Company shall bear the cost of all fees the Accounting Firm charges in connection with any calculations contemplated by this Section 17. In connection with making determinations under this Section 17, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by you before or after the Change of Control, including any non-competition provisions that may apply to you and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 1 contract

Samples: Employment Agreement (Fresh Grapes, LLC)