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Common use of Section 280G Clause in Contracts

Section 280G. (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 12 contracts

Samples: Employment Agreement (Americas Carmart Inc), Employment Agreement (Americas Carmart Inc), Employment Agreement (Americas Carmart Inc)

Section 280G. (a) In Executive shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the event Code (such excise tax being the “Excise Tax”); provided, however, that the total amount of payments any payment or benefit received or to be received by Executive, whether payable under the Associate, pursuant to terms of this Agreement or otherwiseany other plan, arrangement or agreement with Company or an affiliate of Company (collectively, the “Payments”) that are contingent upon would constitute a change in ownership or control (“parachute payment” within the meaning of Section 280G of the Code) would, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount extent necessary so that will cause the total amounts of the payments not to no portion thereof shall be subject to the Excise Tax, but only if the amount if, by reason of such paymentsreduction, after the net after-tax benefit Executive receives shall exceed the net after-tax benefit that Executive would receive if no such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Taxwas made. (b) The accounting firm engaged by “net after-tax benefit” shall mean (i) the Payments which Executive receives or is then entitled to receive from the Company for general audit purposes that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided thatamount of all federal, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses state and local income and employment taxes payable by Executive with respect to the determinations by foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such Accounting Firm required year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Tax imposed with respect to be made hereunder. The Accounting Firm engaged to make the payments and benefits described in (b)(i) above. (c) All determinations under this Section 18 7 will be made by an accounting firm or law firm (the “280G Firm”) that is mutually agreed to by Executive and the Company prior to a change in ownership or control of a corporation (within the meaning of Treasury regulations under Section 280G of the Code). The 280G Firm shall provide its calculations, together with be required to evaluate the extent to which payments are exempt from Section 280G of the Code as reasonable compensation for services rendered before or after the Change in Control. All fees and expenses of the 280G Firm shall be paid solely by the Company. The Company will direct the 280G Firm to submit any determination it makes under this Section 7 and detailed supporting documentationcalculations to both Executive and the Company as soon as reasonably practicable. (d) If the 280G Firm determines that one or more reductions are required under this Section 7, such Payments shall be reduced in the order that would provide Executive with the largest amount of after-tax proceeds (with such order, to the Associate extent permitted by Sections 280G and 409A of the Code, designated by Executive, or otherwise determined by the 280G Firm) to the extent necessary so that no portion thereof shall be subject to the Excise Tax, and the Company within fifteen (15) calendar days after shall pay such reduced amount to Executive. Executive shall at any time have the date on which the Associate’s unilateral right to forfeit any equity award in whole or in part. (e) As a payment contingent result of the uncertainty in the application of Section 280G of the Code at the time that the 280G Firm makes its determinations under this Section 7, it is possible that amounts will have been paid or distributed to Executive that should not have been paid or distributed (collectively, the “Overpayments”), or that additional amounts should be paid or distributed to Executive (collectively, the “Underpayments”). If the 280G Firm determines, based on either the assertion of a Change in Control is triggered (if requested at that time deficiency by Associate the Internal Revenue Service against Executive or the Company) , which assertion the 280G Firm believes has a high probability of success or such other time as requested by is otherwise based on controlling precedent or substantial authority, that an Overpayment has been made, Executive must repay the Associate or Overpayment to the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (without interest; provided, however, that such election shall no loan will be subject deemed to have been made and no amount will be payable by Executive to the Company’s approval if made on or after the date on which the event that triggers the payment occurs Company unless, and then only to the extent that such election does not violate Code that, the deemed loan and payment would either reduce the amount on which Executive is subject to tax under Section 409A): reduction of cash payments (in reverse order 4999 of the date on which such cash payments would Code or generate a refund of tax imposed under Section 4999 of the Code. If the 280G Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the 280G Firm will notify Executive and the Company of that determination, and the Company will promptly pay the amount of that Underpayment to Executive without interest. (f) Executive and the Company will provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise be made cooperate with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In 280G Firm in connection with the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order preparation and issuance of the grant date determinations and calculations contemplated by this Section 7. For purposes of making the calculations required by this Section 7, the 280G Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCode.

Appears in 12 contracts

Samples: Employment Agreement, Employment Agreement (OptiNose, Inc.), Employment Agreement (OptiNose, Inc.)

Section 280G. Notwithstanding anything contained in this Agreement to the contrary to the extent that any of the payments and benefits provided for under this Agreement together with any payments or benefits under any other agreement or arrangement between the Company and the Employee (collectively, the “Payments”) would (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control (constitute “parachute payments” within the meaning of Section 280G of the CodeCode and (b) would, but for this Section 18(a), 14 would be subject to the excise tax imposed by Section 4999 of the Code Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise such Payments shall be either: (i) delivered in full, or (ii) reduced (but not below zero) to the maximum amount that will cause could be paid to the total amounts Employee without giving rise to the Excise Tax, whichever of the payments not to foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the Excise Tax (and any equivalent state or local excise taxes), results in the receipt by the Employee, on an after-tax basis, of the greatest amount of the Payments, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. Unless the Company and the Employee otherwise agree, but only if any determination required under this Section 14 will be made in writing by independent public accountants (the amount of such payments“Accountants”) chosen by the Company, after such reduction whose determination will be conclusive and after payment of all applicable taxes on binding (absent manifest error) upon the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by Employee and the Company for general audit all purposes. For purposes (of making the “Audit Firm”) shall perform any calculations necessary required by this Section 14, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Employee agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 14. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments14. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is Payments required by Section 18(a), the reduction this provision shall occur in the following order unless (and in a manner compliant with Section 409A of the Associate elects in writing a different order Code): (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): 1) reduction of cash payments, beginning with payments scheduled to occur soonest; (2) reduction of vesting acceleration of equity awards (in reverse order of the date on which such cash payments would otherwise be made with of the cash payments that would otherwise be made last being reduced firstgrant); cancellation of accelerated vesting of stock awards; and (3) reduction of employee benefits. In the event that accelerated vesting of stock awards is other benefits paid or provided to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationEmployee.

Appears in 11 contracts

Samples: Employment Agreement (First Financial Corp /In/), Employment Agreement (First Financial Corp /In/), Employment Agreement (First Financial Corp /In/)

Section 280G. (a) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that the total amount of payments to be received any payment or distribution by the Associate, Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, that are contingent upon ) (a change in ownership or control (within the meaning of Section 280G of the Code“Payment”) would, but for this Section 18(a), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise TaxCode”), then then, prior to the amount making of payments any Payment to be received by the Associate pursuant to this Agreement or otherwise Executive, a calculation shall be reduced made comparing (i) the net benefit to Executive of the Payment after payment of the Excise Tax to (ii) the net benefit to Executive if the Payment were limited to the maximum amount that will cause the total amounts of the payments not extent necessary to be avoid being subject to the Excise Tax. If the amount calculated under (i) above is less than the amount calculated under (ii) above, but only if then the Payment shall be limited to the extent necessary to avoid being subject to the Excise Tax. In such event, cash payments shall be modified or reduced first (against the amounts payable latest in time) and then any other benefits pro rata. The determination of whether an Excise Tax would be imposed, the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. , and the calculation of the amounts referred to in clauses (bi) The and (ii) above shall be made by an independent accounting firm engaged selected by the Company for general audit purposes and reasonably acceptable to Executive, at the Company’s expense (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such paymentsprovide detailed supporting calculations. Any good faith determinations of determination by the Accounting Firm made hereunder shall be finalbinding upon the Company and Executive. 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, bindingit is possible that Payments Executive would have been entitled to, but did not, receive could have been made without the imposition of the Excise Tax (“Underpayment”). In such event, the Accounting Firm shall determine the amount of the Underpayment that has occurred, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that any such election Underpayment shall be subject promptly paid by the Company to or for the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction benefit of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationExecutive.

Appears in 9 contracts

Samples: Employment Agreement (Repay Holdings Corp), Employment Agreement (Repay Holdings Corp), Employment Agreement (Repay Holdings Corp)

Section 280G. If any payment or benefit you would receive or retain under this Severance Agreement, when combined with any other payment or benefit you receive or retain in connection with a “change in control event” within the meaning of Section 280G of the Code and the regulations and guidance thereunder (“Section 280G”), would (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon constitute a change in ownership or control (“parachute payment” within the meaning of Section 280G of the Code, and (b) would, but for this Section 18(a)7, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either payable in full or in such lesser amount 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 payments to be received by the Associate pursuant to this Agreement Payment notwithstanding that all or otherwise shall be reduced to the maximum amount that will cause the total amounts some portion of the payments not to Payment may be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal . All determinations required to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxesmade under this Section 7, including whether and to what extent the Excise Tax. (b) The Payment shall be reduced and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm engaged or consulting firm experience in matters regarding Section 280G of the Code as may be designated by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm280G Advisor”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 280G Advisor shall provide its calculations, together with detailed supporting documentation, calculations both to the Associate you and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as is requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate All fees and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations expenses of the Accounting Firm made hereunder shall be final, binding, and conclusive borne solely by the Company. Any final determination by the 280G Advisor shall be binding upon Associate you and the Company. If a reduction in payments or benefits constituting “parachute payments” is For purposes of making the calculations required by this Section 18(a)7, the reduction shall occur in 280G Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs application of Sections 280G and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order 4999 of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCode.

Appears in 8 contracts

Samples: Severance Agreement (Lemonade, Inc.), Severance Agreement (Lemonade, Inc.), Severance Agreement (Lemonade, Inc.)

Section 280G. (a) In the event that the total amount of payments to be received by the AssociateExecutive, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a21(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate Executive pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate Executive would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)21. The Company shall bear all expenses with respect to the determinations by such Accounting Firm accounting firm required to be made hereunder. The Accounting Firm accounting firm engaged to make the determinations under this Section 18 21 shall provide its calculations, together with detailed supporting documentation, to the Associate Executive and the Company within fifteen (15) 15 calendar days after the date on which the AssociateExecutive’s right to a payment contingent on a Change change in Control control is triggered (if requested at that time by Associate Executive or the Company) or such other time as requested by the Associate Executive or the Company. If the Accounting Firm accounting firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate Executive and the Company with an opinion reasonably acceptable to Associate Executive that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm accounting firm made hereunder shall be final, binding, and conclusive upon Associate Executive and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a21(a), the reduction shall occur in the following order unless the Associate Executive elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the AssociateExecutive’s stock awards unless the Associate Executive elects in writing a different order for cancellation.

Appears in 7 contracts

Samples: Interim Executive Agreement (Envestnet, Inc.), Executive Agreement (Outbrain Inc.), Executive Agreement (Outbrain Inc.)

Section 280G. (a) In Executive shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the event Code (such excise tax being the “Excise Tax”); provided, however, that the total amount of payments any payment or benefit received or to be received by Executive, whether payable under the Associate, pursuant to terms of this Agreement or otherwiseany other plan, arrangement or agreement with Company or an affiliate of Company (collectively, the “Payments”) that are contingent upon would constitute a change in ownership or control (“parachute payment” within the meaning of Section 280G of the Code) would, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount extent necessary so that will cause the total amounts of the payments not to no portion thereof shall be subject to the Excise Tax, but only if the amount if, by reason of such paymentsreduction, after the net after-tax benefit Executive receives shall exceed the net after-tax benefit that Executive would receive if no such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Taxwas made. (b) The accounting firm engaged by “net after-tax benefit” shall mean (i) the Payments which Executive receives or is then entitled to receive from the Company for general audit purposes that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided thatamount of all federal, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses state and local income and employment taxes payable by Executive with respect to the determinations by foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such Accounting Firm required year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Tax imposed with respect to be made hereunder. The Accounting Firm engaged to make the payments and benefits described in (b)(i) above. (c) All determinations under this Section 18 7 will be made by an accounting firm or law firm (the “280G Firm”) that is mutually agreed to by Executive and the Company prior to a change in ownership or control of a corporation (within the meaning of Treasury regulations under Section 280G of the Code). The 280G Firm shall provide its calculations, together with be required to evaluate the extent to which payments are exempt from Section 280G of the Code as reasonable compensation for services rendered before or after the Change of Control. All fees and expenses of the 280G Firm shall be paid solely by the Company. The Company will direct the 280G Firm to submit any determination it makes under this Section 7 and detailed supporting documentationcalculations to both Executive and the Company as soon as reasonably practicable. (d) If the 280G Firm determines that one or more reductions are required under this Section 7, such Payments shall be reduced in the order that would provide Executive with the largest amount of after-tax proceeds (with such order, to the Associate extent permitted by Sections 280G and 409A of the Code, designated by Executive, or otherwise determined by the 280G Firm) to the extent necessary so that no portion thereof shall be subject to the Excise Tax, and the Company within fifteen (15) calendar days after shall pay such reduced amount to Executive. Executive shall at any time have the date on which the Associate’s unilateral right to forfeit any equity award in whole or in part. (e) As a payment contingent result of the uncertainty in the application of Section 280G of the Code at the time that the 280G Firm makes its determinations under this Section 7, it is possible that amounts will have been paid or distributed to Executive that should not have been paid or distributed (collectively, the “Overpayments”), or that additional amounts should be paid or distributed to Executive (collectively, the “Underpayments”). If the 280G Firm determines, based on either the assertion of a Change in Control is triggered (if requested at that time deficiency by Associate the Internal Revenue Service against Executive or the Company) , which assertion the 280G Firm believes has a high probability of success or such other time as requested by is otherwise based on controlling precedent or substantial authority, that an Overpayment has been made, Executive must repay the Associate or Overpayment to the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (without interest; provided, however, that such election shall no loan will be subject deemed to have been made and no amount will be payable by Executive to the Company’s approval if made on or after the date on which the event that triggers the payment occurs Company unless, and then only to the extent that such election does not violate Code that, the deemed loan and payment would either reduce the amount on which Executive is subject to tax under Section 409A): reduction of cash payments (in reverse order 4999 of the date on which such cash payments would Code or generate a refund of tax imposed under Section 4999 of the Code. If the 280G Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the 280G Firm will notify Executive and the Company of that determination, and the Company will promptly pay the amount of that Underpayment to Executive without interest. (f) Executive and the Company will provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise be made cooperate with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In 280G Firm in connection with the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order preparation and issuance of the grant date determinations and calculations contemplated by this Section 7. For purposes of making the calculations required by this Section 7, the 280G Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCode.

Appears in 6 contracts

Samples: Employment Agreement (OptiNose, Inc.), Employment Agreement (OptiNose, Inc.), Employment Agreement (OptiNose, Inc.)

Section 280G. (a) In Notwithstanding anything in this Agreement to the contrary, in the event it will be determined that the total amount of payments to be received any payment or distribution by the Associate, Equity Group to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, that payments or distributions are contingent upon a change in ownership or control (within the meaning of Section 280G of the Codehereinafter referred to as “Payments”) would, but for this Section 18(a)if paid, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced then, prior to the maximum amount that making of any Payments to Executive, a calculation will cause be made comparing (i) the total amounts net after-tax benefit to Executive of the payments not Payments after payment by Executive of the Excise Tax, to be (ii) the net after-tax benefit to Executive if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax, but only if . If the amount calculated under clause (i) of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, immediately preceding sentence is equal to or greater less than the amount of such payments calculated under clause (ii) thereof, then the Associate would otherwise Payments will be entitled limited to retain without such reduction after the payment of all applicable taxes, including extent necessary to avoid triggering the Excise TaxTax (the “Reduced Amount”). (b) The reduction of the Payments, if applicable, will be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the Change of Control, as determined by the accounting firm engaged by that was the Company for general audit purposes Bank’s independent auditor immediately before the Change of Control (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Determination Firm”). The Company shall bear all expenses For purposes of this Section 7, present value will be determined in accordance with respect Section 280G(d)(4) of the Code. For purposes of this Section 7, the “Parachute Value” of a Payment means the present value as of the date of the Change of Control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (c) All determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall 7, including whether an Excise Tax would otherwise be imposed, whether the Payments will be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, will be made by the Determination Firm, which will provide its calculations, together with detailed supporting documentation, calculations both to the Associate Bank and the Company Executive within fifteen (15) calendar business days after the date on which the Associate’s right receipt of notice from Executive that a Payment is due to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) be made, or such other earlier time as is requested by the Associate Bank. All fees and expenses of the Determination Firm will be borne solely by the Bank. Any determination by the Determination Firm will be binding upon the Bank and Executive. (d) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that amounts will have been paid or distributed by the CompanyEquity Group to or for the benefit of Executive that should not have been so paid or distributed (an “Overpayment”) or that additional amounts that will have not been paid or distributed by the Equity Group to or for the benefit of Executive could have been so paid or distributed (an “Underpayment”). If In the Accounting event that the Determination Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Equity Group or Executive that the Determination Firm believes has a high probability of success determines that no Excise Tax is payable with respect an Overpayment has been made, any such Overpayment paid or distributed by the Equity Group to such payments, it shall furnish or for the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax benefit of Executive will be imposed with respect repaid by Executive to such payments. Any good faith determinations the appropriate member of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and Equity Group together with interest at the Company. If a reduction applicable federal rate provided for in payments or benefits constituting “parachute payments” is required by Section 18(a), 7872(f)(2)(A) of the reduction shall occur in the following order unless the Associate elects in writing a different order (Code; provided, however, that no such election shall repayment will be required if and to the extent such deemed repayment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the CompanyCode or generate a refund of such taxes. In the event that the Determination Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment will be promptly paid by the Equity Group to or for the benefit of Executive, together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. (e) To the extent requested by Executive, the Bank will cooperate with the Executive in good faith in valuing, and the Determination Firm will take into account the value of, services provided or to be provided by Executive (including Executive’s approval if made agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant) before, on or after the date on which of a change in ownership or control of Parent or the event that triggers Bank (within the payment occurs and to the extent that such election does not violate Code Section 409A): reduction meaning of cash payments (in reverse order Q&A-2(b) of the date on which such cash payments would otherwise be made with final regulations under Section 280G of the cash payments that would otherwise be made last being reduced firstCode); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall that payments in respect of such services may be cancelled in considered reasonable compensation within the reverse order meaning of Q&A-9 and Q&A-40 to Q&A-44 of the grant date final regulations under Section 280G of the Associate’s stock awards unless Code and/or exempt from the Associate elects definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in writing a different order for cancellationaccordance with Q&A-5(a) of the final regulations under Section 280G of the Code.

Appears in 5 contracts

Samples: Employment Agreement (Equity Bancshares Inc), Employment Agreement (Equity Bancshares Inc), Employment Agreement (Equity Bancshares Inc)

Section 280G. (a) In the event that the total amount of any payments or benefits otherwise payable to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control Executive (1) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (2) would, but for this Section 18(a7(e), 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. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 7(e) will be made in writing by a nationally-recognized accounting firm selected jointly by the Company and Executive (the “Accountants”), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 7(e), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this provision. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this provision. 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 7 are compensation for Executive’s compliance with the restrictive provisions of Section 10 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 the amount of payments to be net after-tax proceeds received by Executive; provided that such actions do not result in payment of any increased compensation to Executive, do not provide for any gross-up or indemnity for potential excise taxes and do not reduce the Associate payments and benefits to which Executive is otherwise entitled (except as required pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise TaxSection 7(e)). (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 4 contracts

Samples: Employment Agreement (Townsquare Media, Inc.), Employment Agreement (Townsquare Media, Inc.), Employment Agreement (Townsquare Media, Inc.)

Section 280G. Executive shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the Code (a) In such excise tax being the event "Excise Tax"); provided, however, that the total amount of payments any payment or benefit received or to be received by Executive, whether payable under the Associate, pursuant to terms of this Agreement or otherwiseany other plan, arrangement or agreement with Company or an affiliate of Company (collectively, the "Payments") that are contingent upon would constitute a change in ownership or control ("parachute payment" within the meaning of Section 280G of the Code) would, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount extent necessary so that will cause no portion thereof shall be subject to the total amounts Excise Tax but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit that would be received by Executive if no such reduction was made. The "net after-tax benefit" shall mean (i) the Payments which Executive receives or is then entitled to receive from the Company that would constitute "parachute payments" within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income and employment taxes payable by Executive with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Tax imposed with respect to the payments not and benefits described in (b)(i) above. All determinations under this Section 6 will be made by an accounting firm or law firm (the "280G Firm") that is mutually agreed to by Executive and the Company prior to a change in ownership or control of a corporation (within the meaning of Treasury regulations under Section 280G of the Code). The 280G Firm shall be required to evaluate the extent to which payments are exempt from Section 280G of the Code as reasonable compensation for services rendered before or after the Change in Control. All fees and expenses of the 280G Firm shall be paid solely by the Company. The Company will direct the 280G Firm to submit any determination it makes under this Section 6 and detailed supporting calculations to both Executive and the Company as soon as reasonably practicable. If the 280G Firm determines that one or more reductions are required under this Section 6, such Payments shall be reduced in the order that would provide Executive with the largest amount of after-tax proceeds (with such order, to the extent permitted by Sections 280G and 409A of the Code, designated by Executive, or otherwise determined by the 280G Firm) to the extent necessary so that no portion thereof shall be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage pay such other accounting firm as reduced amount to Executive. Executive shall at any time have the Audit unilateral right to forfeit any equity award in whole or in part. As a result of the uncertainty in the application of Section 280G of the Code at the time that the 280G Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the makes its determinations under this Section 18 shall provide its calculations6, together with detailed supporting documentationit is possible that amounts will have been paid or distributed to Executive that should not have been paid or distributed (collectively, the "Overpayments"), or that additional amounts should be paid or distributed to Executive (collectively, the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company"Underpayments"). If the Accounting 280G Firm determines that no Excise Tax is payable with respect to such paymentsdetermines, it shall furnish based on either the Associate and assertion of a deficiency by the Internal Revenue Service against the Company with or Executive, which assertion the 280G Firm believes has a high probability of success or is otherwise based on controlling precedent or substantial authority, that an opinion reasonably acceptable Overpayment has been made, Executive must repay the Overpayment to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (without interest; provided, however, that such election shall no loan will be subject deemed to have been made and no amount will be payable by Executive to the Company’s approval if made on or after the date on which the event that triggers the payment occurs Company unless, and then only to the extent that such election does not violate Code that, the deemed loan and payment would either reduce the amount on which Executive is subject to tax under Section 409A): reduction of cash payments (in reverse order 4999 of the date on which such cash payments would Code or generate a refund of tax imposed under Section 4999 of the Code. If the 280G Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the 280G Firm will notify Executive and the Company of that determination, and the Company will promptly pay the amount of that Underpayment to Executive without interest. The Company and Executive will provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise be made cooperate with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In 280G Firm in connection with the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order preparation and issuance of the grant date determinations and calculations contemplated by this Section 6. For purposes of making the calculations required by this Section 6, the 280G Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCode.

Appears in 4 contracts

Samples: Employment Agreement (Pernix Therapeutics Holdings, Inc.), Employment Agreement (Pernix Therapeutics Holdings, Inc.), Employment Agreement (Pernix Therapeutics Holdings, Inc.)

Section 280G. (a) In Notwithstanding anything contained in this Agreement to the contrary, in the event that the total amount of payments any payment or benefit received or to be received by the Associate, Executive (whether pursuant to the terms of this Agreement or otherwiseany other plan, that are contingent upon a change arrangement or agreement) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in ownership whole or control (within the meaning of Section 280G of the Code) would, but for this Section 18(apart), be subject 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 such remaining Total Payments shall be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of payments Excise Tax to which Executive would be received by subject in respect of such unreduced Total Payments and after taking into account the Associate pursuant phase out of itemized deductions and personal exemptions attributable to this Agreement or otherwise shall be reduced such unreduced Total Payments). (b) For purposes of determining whether and the extent to which the maximum amount that Total Payments will cause the total amounts of the payments not to be subject to the Excise Tax, but only if (i) no portion of the amount Total Payments the receipt or enjoyment of which Executive shall have waived at such paymentstime 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; (ii) no portion of the Total Payments shall be taken into account which, after such reduction and after payment in the written opinion of all applicable taxes on an independent, nationally recognized accounting firm (the reduced amount“Independent Advisors”) selected by the Company, is equal to or greater than does not constitute a “parachute payment” within the amount meaning of such payments Section 280G(b)(2) of the Associate would otherwise be entitled to retain without such reduction after Code (including by reason of Section 280G(b)(4)(A) of the payment of all applicable taxesCode) and, including in calculating the Excise Tax. , no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (bas defined in Section 280G(b)(3) The accounting firm engaged of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company for general audit purposes Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (the “Audit Firm”4) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCode.

Appears in 4 contracts

Samples: Executive Employment Agreement (ATAI Life Sciences N.V.), Employment Agreement (ATAI Life Sciences B.V.), Employment Agreement (ATAI Life Sciences B.V.)

Section 280G. (a) In To the event extent that any payment or distribution to or for the total amount benefit of payments to be received by the Associate, Executive pursuant to the terms of this Agreement or otherwiseany other plan, that are contingent upon arrangement or agreement with the Company, any of its affiliated companies, any person whose actions result in a change in of ownership or effective control (within the meaning of covered by Section 280G 280G(b)(2) of the CodeCode or any person affiliated with the Company or such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Payments”) would, but for this Section 18(a), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code Code, then the Company shall reduce the payments to the amount that is (after taking into account federal, state, local and social security taxes at the maximum marginal rates, including any excise taxes imposed by Section 4999 of the Code) one dollar less than the amount of the Payments that would subject the Executive to the Excise Tax (the “Excise TaxSafe Harbor Cap)) if, then and only if, such reduction would result in Executive receiving a higher net after-tax amount. Unless Executive shall have given prior written notice specifying a different order to the Company to effectuate the Safe Harbor Cap, the Payments to be reduced hereunder will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when the Payment would have been made to Executive until the reduction specified herein is achieved. Executive’s right to specify the order of reduction of the Payments shall apply only to the extent that it does not directly or indirectly alter the time or method of payment of any amount that is deferred compensation subject to (and not exempt from) Section 409A. (b) All determinations required to be made under this Section 4, including whether and when the Safe Harbor Cap is required and the amount of payments the reduction of the Payments pursuant to the Safe Harbor Cap and the assumptions to be received utilized in arriving at such determination, shall be made by a public accounting firm or other nationally recognized consulting firm with expertise in Section 280G of the Code that is retained by the Associate pursuant Company as of the date immediately prior to this Agreement the Change in Control (the “Calculating Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or otherwise Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the “Determination”). In the event that the Calculating Firm is serving as accountant, auditor or consultant for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized public accounting or consulting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Calculating Firm hereunder). All fees and expenses of the Calculating Firm shall be reduced to borne solely by the maximum amount that will cause Company and the total amounts Company shall enter into any agreement requested by the Calculating Firm in connection with the performance of the payments not to services hereunder. The Determination by the Calculating Firm shall be subject binding upon the Company and Executive. The Company shall bear and pay directly all costs and expenses incurred in connection with any contests or disputes with the Internal Revenue Service relating to the Excise Tax, but only if and Executive shall cooperate, to the amount extent his or her reasonable out-of such paymentspocket expenses are reimbursed by the Company, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged with any reasonable requests by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, such contests or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationdisputes.

Appears in 4 contracts

Samples: Compensation Protection Agreement (CDW Corp), Compensation Protection Agreement (CDW Corp), Compensation Protection Agreement (CDW Corp)

Section 280G. If any payment or benefit you would receive or retain under this Severance Agreement, when combined with any other payment or benefit you receive or retain in connection with a “change in control event” within the meaning of Section 280G of the Code and the regulations and guidance thereunder (“Section 280G”), would (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon constitute a change in ownership or control (“parachute payment” within the meaning of Section 280G of the Code, and (b) would, but for this Section 18(a)9, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either payable in full or in such lesser amount 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 payments to be received by the Associate pursuant to this Agreement Payment notwithstanding that all or otherwise shall be reduced to the maximum amount that will cause the total amounts some portion of the payments not to Payment may be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal . All determinations required to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxesmade under this Section 9, including whether and to what extent the Excise Tax. (b) The Payment shall be reduced and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm engaged or consulting firm experience in matters regarding Section 280G of the Code as may be designated by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm280G Advisor”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 280G Advisor shall provide its calculations, together with detailed supporting documentation, calculations both to the Associate you and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as is requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate All fees and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations expenses of the Accounting Firm made hereunder shall be final, binding, and conclusive borne solely by the Company. Any final determination by the 280G Advisor shall be binding upon Associate you and the Company. If a reduction in payments or benefits constituting “parachute payments” is For purposes of making the calculations required by this Section 18(a)9, the reduction shall occur in 280G Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs application of Sections 280G and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order 4999 of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCode.

Appears in 3 contracts

Samples: Employment Agreement (Marimed Inc.), Employment Agreement (Marimed Inc.), Employment Agreement (Marimed Inc.)

Section 280G. (a) In the event that the total amount of any payments or benefits otherwise payable to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control Executive (1) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (2) would, but for this Section 18(a7(g), 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. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 7(g) will be made in writing by a nationally-recognized accounting firm selected jointly by the Company and Executive (the “Accountants”), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 7(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this provision. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this provision. 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 7 are compensation for Executive’s compliance with the restrictive provisions of Section 10 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 the amount of payments to be net after-tax proceeds received by Executive; provided that such actions do not result in payment of any increased compensation to Executive, do not provide for any gross-up or indemnity for potential excise taxes and do not reduce the Associate payments and benefits to which Executive is otherwise entitled (except as required pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise TaxSection 7(g)). (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 3 contracts

Samples: Employment Agreement (Townsquare Media, Inc.), Employment Agreement (Townsquare Media, Inc.), Employment Agreement (Townsquare Media, Inc.)

Section 280G. (a) In If any of the event that the total amount of payments or benefits received or to be received by the AssociateExecutive (including, without limitation, any payment or benefits received in connection with a Change in Control or the Executive’s termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise, that are contingent upon a change in ownership or control ) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section Code section 280G of the Code) would, but for this Section 18(a), and will be subject to the excise tax imposed by Section under Code section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise such 280G Payments shall be reduced by the minimum amount required so that no amount payable to the maximum amount that Executive will cause the total amounts of the payments not to be subject to the Excise Tax, but only if Tax (with the amount of such payments, after such reduction cash severance under this Agreement to be reduced first and after payment of all applicable taxes on with any further reductions that may be required to be determined by Tax Counsel (as defined below) in a manner that minimizes the reduced amount, is equal impact to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise TaxExecutive). (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any All calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the and determinations under this Section 18 5.9 shall provide its calculationsbe made by an independent accounting firm or independent tax counsel appointed by the Bank (the “Tax Counsel”) whose determinations shall be conclusive and binding on the MHC, together with detailed supporting documentation, to the Associate Bancorp and the Company within fifteen Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Code sections 280G and 4999. The MHC, the Bancorp and the Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The MHC and the Bancorp shall bear all costs the Tax Counsel may reasonably incur in connection with its services. (15c) calendar days after The MHC’s and the date on which Bancorp’s obligations under this Section shall not be conditioned upon the AssociateExecutive’s right to a payment contingent on termination of employment. By way of example, in the event of a Change in Control is triggered (if requested at that time by Associate does not result in Executive’s termination of employment or entitlement to severance benefits under this Agreement, but which causes the Company) accelerated vesting of any shares of restricted stock, stock options or such other time as requested by awards issued to the Associate or Executive giving rise to an Excise Tax, the Company. If MHC’s and the Accounting Firm determines that no Excise Tax is payable Bancorp’s obligations under this Section shall apply with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationvesting.

Appears in 3 contracts

Samples: Employment Agreement (PDL Community Bancorp), Employment Agreement (PDL Community Bancorp), Employment Agreement (PDL Community Bancorp)

Section 280G. (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a12(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts amount of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 1812; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 12 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” (as defined in Section 280G(b)(2) of the Code) is required by Section 18(a12(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A409A of the Code): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first)payments; then cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 2 contracts

Samples: Change in Control Agreement (Americas Carmart Inc), Change in Control Agreement (Americas Carmart Inc)

Section 280G. If any payment or benefit you would receive or retain under this Severance Agreement, when combined with any other payment or benefit you receive or retain in connection with a “change in control event” within the meaning of Section 280G of the Code and the regulations and guidance thereunder (“Section 280G”), would (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon constitute a change in ownership or control (“parachute payment” within the meaning of Section 280G of the Code, and (b) would, but for this Section 18(a)8, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either payable in full or in such lesser amount 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 payments to be received by the Associate pursuant to this Agreement Payment notwithstanding that all or otherwise shall be reduced to the maximum amount that will cause the total amounts some portion of the payments not to Payment may be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal . All determinations required to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxesmade under this Section 8, including whether and to what extent the Excise Tax. (b) The Payment shall be reduced and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm engaged or consulting firm experience in matters regarding Section 280G of the Code as may be designated by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm280G Advisor”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 280G Advisor shall provide its calculations, together with detailed supporting documentation, calculations both to the Associate you and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as is requested by the Associate or Company. All fees and expenses of the 280G Advisor shall be borne solely by the Company. If Any final determination by the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder 280G Advisor shall be final, binding, and conclusive binding upon Associate you and the Company. If a reduction in payments or benefits constituting “parachute payments” is For purposes of making the calculations required by this Section 18(a)8, the reduction shall occur in 280G Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs application of Sections 280G and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order 4999 of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCode.

Appears in 2 contracts

Samples: Severance Agreement (Ribbon Communications Inc.), Severance Agreement (Ribbon Communications Inc.)

Section 280G. (a) In If any of the event that the total amount of payments or benefits received or to be received by Executive constitute "parachute payments" (all such payments collectively referred to herein as the Associate, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control ("280G Payments") within the meaning of Section 280G of the Internal Revenue Code (the "Code") and would, but for this Section 18(a)20, be subject to the excise tax imposed by under Section 4999 of the Code (the "Excise Tax"), then prior to making the amount of payments to be received by the Associate pursuant to this Agreement or otherwise 280G Payments, a calculation shall be reduced made comparing (i) the Net Benefit (as defined below) to the maximum amount that will cause the total amounts Executive of the payments not 280G Payments after payment of the Excise Tax to be (ii) the Net Benefit to the Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax, but only . Only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, calculated under (i) above is equal to or greater less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of such payments the Associate would otherwise be entitled 280G Payments is subject to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The . "Net Benefit" shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 20 shall be made in a manner consistent with the requirements of Section 409A. All calculations and determinations under this Section 20 shall be made by an independent accounting firm engaged or independent tax counsel appointed by the Company for general audit purposes (the “Audit Firm”"Tax Counsel") whose determinations shall perform any be conclusive and binding on the Company and Executive for all purposes. For purposes of making the calculations necessary in connection with and determinations required by this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations20, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and Executive shall engage furnish the Tax Counsel with such other accounting firm information and documents as the Audit Firm shall recommend Tax Counsel may reasonably request in writing order to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)make its determinations under this Section 20. The Company shall bear all expenses costs the Tax Counsel may reasonably incur in connection with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationservices.

Appears in 2 contracts

Samples: Employment Agreement (Basanite, Inc.), Employment Agreement (Basanite, Inc.)

Section 280G. (a) In Officer shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the event Code (such excise tax being the “Excise Tax”); provided, however, that the total amount of payments any payment or benefit received or to be received by Officer, whether payable under the Associate, pursuant to terms of this Agreement or otherwiseany other plan, arrangement or agreement with Company or an affiliate of Company (collectively, the “Payments”) that are contingent upon would constitute a change in ownership or control (“parachute payment” within the meaning of Section 280G of the Code) would, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount extent necessary so that will cause the total amounts of the payments not to no portion thereof shall be subject to the Excise Tax, but only if the amount if, by reason of such paymentsreduction, after the net after-tax benefit Officer receives shall exceed the net after-tax benefit that Officer would receive if no such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Taxwas made. (b) The accounting firm engaged by “net after-tax benefit” shall mean (i) the Payments which Officer receives or is then entitled to receive from the Company for general audit purposes that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided thatamount of all federal, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses state and local income and employment taxes payable by Officer with respect to the determinations by foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to Officer (based on the rate in effect for such Accounting Firm required year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of Excise Tax imposed with respect to be made hereunder. The Accounting Firm engaged to make the payments and benefits described in (b)(i) above. (c) All determinations under this Section 18 7 will be made by an accounting firm or law firm (the “280G Firm”) that is mutually agreed to by Officer and the Company prior to a change in ownership or control of a corporation (within the meaning of Treasury regulations under Section 280G of the Code). The 280G Firm shall provide its calculations, together with be required to evaluate the extent to which payments are exempt from Section 280G of the Code as reasonable compensation for services rendered before or after the Change of Control. All fees and expenses of the 280G Firm shall be paid solely by the Company. The Company will direct the 280G Firm to submit any determination it makes under this Section 7 and detailed supporting documentationcalculations to both Officer and the Company as soon as reasonably practicable. (d) If the 280G Firm determines that one or more reductions are required under this Section 7, such Payments shall be reduced in the order that would provide Officer with the largest amount of after-tax proceeds (with such order, to the Associate extent permitted by Sections 280G and 409A of the Code, designated by Officer, or otherwise determined by the 280G Firm) to the extent necessary so that no portion thereof shall be subject to the Excise Tax, and the Company within fifteen (15) calendar days after shall pay such reduced amount to Officer. Officer shall at any time have the date on which the Associate’s unilateral right to forfeit any equity award in whole or in part. (e) As a payment contingent result of the uncertainty in the application of Section 280G of the Code at the time that the 280G Firm makes its determinations under this Section 7, it is possible that amounts will have been paid or distributed to Officer that should not have been paid or distributed (collectively, the “Overpayments”), or that additional amounts should be paid or distributed to Officer (collectively, the “Underpayments”). If the 280G Firm determines, based on either the assertion of a Change in Control is triggered (if requested at that time deficiency by Associate the Internal Revenue Service against Officer or the Company) , which assertion the 280G Firm believes has a high probability of success or such other time as requested by is otherwise based on controlling precedent or substantial authority, that an Overpayment has been made, Officer must repay the Associate or Overpayment to the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (without interest; provided, however, that such election shall no loan will be subject deemed to have been made and no amount will be payable by Officer to the Company’s approval if made on or after the date on which the event that triggers the payment occurs Company unless, and then only to the extent that such election does not violate Code that, the deemed loan and payment would either reduce the amount on which Officer is subject to tax under Section 409A): reduction of cash payments (in reverse order 4999 of the date on which such cash payments would Code or generate a refund of tax imposed under Section 4999 of the Code. If the 280G Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the 280G Firm will notify Officer and the Company of that determination, and the Company will promptly pay the amount of that Underpayment to Officer without interest. (f) Officer and the Company will provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise be made cooperate with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In 280G Firm in connection with the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order preparation and issuance of the grant date determinations and calculations contemplated by this Section 7. For purposes of making the calculations required by this Section 7, the 280G Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCode.

Appears in 2 contracts

Samples: Employment Agreement (OptiNose, Inc.), Employment Agreement (OptiNose, Inc.)

Section 280G. Prior to the Closing Date, the Company shall use commercially reasonable efforts to obtain from each Person (aeach, a “Disqualified Individual”) In the event that the total amount of payments to whom any payment or benefit is required or proposed to be received made in connection with the transactions contemplated by this Agreement that could constitute “parachute payments” under Section 280G(b)(2) of the Code and the regulations promulgated thereunder (“Section 280G Payments”) a written agreement (a “Parachute Payment Waiver”) waiving such Disqualified Individual’s right to receive some or all of such payment or benefit (the “Waived Benefits”), to the extent necessary so that all remaining payments and benefits applicable to such Disqualified Individual shall not be deemed a parachute payment, and accepting in substitution for the Waived Benefits the right to receive the Waived Benefits only if approved by the Associatestockholders of the Company in a manner that complies with Section 280G(b)(5)(B) of the Code. In connection with the foregoing, the Parent shall provide the Company with all information reasonably necessary to allow the Company to determine whether any payments made or to be made or benefits granted or to be granted pursuant to this Agreement any agreement, arrangement or otherwisecontract entered into or negotiated by the Parent or its Affiliates (the “Parent Payments”), that are contingent upon a change in ownership or control (together with all Section 280G Payments, could reasonably be considered to be “parachute payments” within the meaning of Section 280G(b)(2) of the Code at least seven (7) Business Days prior to the Closing Date or promptly after such amounts are known, if later, but in any event not fewer than four (4) Business Days prior to the Closing Date (and shall further provide any such updated information as is reasonably necessary prior to the Closing Date). Prior to the Securities Purchase Closing, the Company shall submit the Waived Benefits of each Disqualified Individual who has executed a Parachute Payment Waiver in accordance with this Section 6.08 for approval of the Company’s stockholders and such Disqualified Individual’s right to receive the Waived Benefits shall be conditioned upon receipt of the requisite approval by the Company’s stockholders in a manner that complies with Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder; provided, that in no event shall this Section 6.08 be construed to require the Company (or any of its Affiliates) to compel any Disqualified Individual to waive any existing rights under any Contract or agreement that such Disqualified Individual has with the Company, any Subsidiary of the Company or any other Person, and in no event shall the Company (or any of its Affiliates) be deemed in breach of this Section 6.08 if any such Disqualified Individual refuses to waive any such rights despite the Company’s commercially reasonable efforts to obtain a Parachute Payment Waiver from such Disqualified Individual or if the stockholders fail to approve any Waived Benefits. Notwithstanding anything to the contrary in this Section 6.08 or otherwise in this Agreement, to the extent the Parent has provided materially inaccurate information, or the Parent’s material omission of information has resulted in materially inaccurate information, with respect to any Parent Payments, there shall be no breach of the covenant contained herein or the representations set forth in Section 4.18(d)(iv) to the extent caused by such inaccurate or omitted information. Prior to obtaining the Parachute Payment Waivers and seeking the stockholder approval described in this Section 6.08, the Company shall provide the Parent and its counsel with copies of the analysis under Section 280G of the Code) would, but for the Parachute Payment Waivers and the disclosure statement and other stockholder approval materials contemplated by this Section 18(a), be subject 6.08 and at least three (3) Business Days to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction review and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend consider in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as good faith any changes reasonably requested by the Associate Parent or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationits counsel.

Appears in 2 contracts

Samples: Transaction Agreement (Fortive Corp), Transaction Agreement

Section 280G. (a) In To the event extent that any payment or distribution to or for the total amount benefit of payments to be received by the Associate, Executive pursuant to the terms of this Agreement or otherwiseany other plan, that are contingent upon arrangement or agreement with the Company, any of its affiliated companies, any person whose actions result in a change in of ownership or effective control (within the meaning of covered by Section 280G 280G(b)(2) of the CodeCode or any person affiliated with the Company or such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Payments”) would, but for this Section 18(a), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code Code, then the Company shall reduce the payments to the amount that is (after taking into account federal, state, local and social security taxes at the maximum marginal rates, including any excise taxes imposed by Section 4999 of the Code) one dollar less than the amount of the Payments that would subject the Executive to the Excise Tax (the “Excise TaxSafe Harbor Cap)) if, then and only if, such reduction would result in Executive receiving a higher net after-tax amount. Unless Executive shall have given prior written notice specifying a different order to the Company to effectuate the Safe Harbor Cap, the Payments to be reduced hereunder will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when the Payment would have been made to Executive until the reduction specified herein is achieved. Executive’s right to specify the order of reduction of the Payments shall apply only to the extent that it does not directly or indirectly alter the time or method of payment of any amount that is deferred compensation subject to (and not exempt from) Section 409A. (b) All determinations required to be made under this Section 5, including whether and when the Safe Harbor Cap is required and the amount of payments the reduction of the Payments pursuant to the Safe Harbor Cap and the assumptions to be received utilized in arriving at such determination, shall be made by a public accounting firm or other nationally recognized consulting firm with expertise in Section 280G of the Code that is retained by the Associate pursuant Company as of the date immediately prior to this Agreement the Change in Control (the “Calculating Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or otherwise Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the “Determination”). In the event that the Calculating Firm is serving as accountant, auditor or consultant for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized public accounting or consulting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Calculating Firm hereunder). All fees and expenses of the Calculating Firm shall be reduced to borne solely by the maximum amount that will cause Company and the total amounts Company shall enter into any agreement requested by the Calculating Firm in connection with the performance of the payments not to services hereunder. The Determination by the Calculating Firm shall be subject binding upon the Company and Executive. The Company shall bear and pay directly all costs and expenses incurred in connection with any contests or disputes with the Internal Revenue Service relating to the Excise Tax, but only if and Executive shall cooperate, to the amount extent his or her reasonable out-of such paymentspocket expenses are reimbursed by the Company, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged with any reasonable requests by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, such contests or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationdisputes.

Appears in 2 contracts

Samples: Compensation Protection Agreement (CDW Corp), Compensation Protection Agreement (CDW Corp)

Section 280G. (a) In the event If it is determined that the total amount amounts payable to your under this Agreement, when considered together with any other amounts payable to you as a result of payments to be received by a Change of Control (collectively, the Associate, pursuant to this Agreement or otherwise, that are contingent upon “Payment”) would (i) constitute a change in ownership or control (“parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) would, but for this Section 18(a)sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of 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 your receipt, on an after-tax basis, of the greater amount of payments to be received by the Associate pursuant to this Agreement Payment notwithstanding that all or otherwise shall be reduced to the maximum amount that will cause the total amounts some portion of the payments not to Payment may be 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, but only if reduction shall occur in the amount following order: reduction of cash payments; reduction of accelerated vesting of stock options; reduction of employee benefits. In the event that acceleration of vesting of stock option compensation is to be reduced, such payments, after such reduction and after payment acceleration of all applicable taxes on vesting shall be cancelled in the reduced amount, is equal to or greater than reverse order of the amount date of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) grant. The accounting firm engaged by the Company for general audit purposes (as of the “Audit Firm”) day prior to the effective date of the Change of Control shall perform any calculations necessary in connection with this Section 18; provided thatthe foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, if for any reason entity or group effecting the Audit Firm is unable to, or declines to, perform such calculationsChange of Control, the Company shall engage such other appoint a nationally recognized accounting firm as to make the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such Accounting Firm accounting firm required to be made hereunder. The Accounting Firm accounting firm engaged to make the determinations under this Section 18 hereunder shall provide its calculations, together with detailed supporting documentation, to the Associate you and the Company within fifteen (15) calendar days after the date on which the Associate’s your right to a payment contingent on a Change in Control Payment is triggered (if requested at that time by Associate you or the Company) or such other time as requested by the Associate you or the Company. If the Accounting Firm accounting firm determines that no Excise Tax is payable with respect to such paymentsa Payment, either before or after the application of the Reduced Amount, it shall furnish the Associate you and the Company with an opinion reasonably acceptable to Associate you that no Excise Tax will be imposed with respect to such paymentsPayment. Any good faith determinations of the Accounting Firm accounting firm made hereunder shall be final, binding, binding and conclusive upon Associate you and the Company, except as set forth below. If, notwithstanding any reduction described in this Section 7, the IRS determines that you are liable for the Excise Tax as a result of the receipt of the payment of benefits as described above, then you shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that you challenge the final IRS determination, a final judicial determination, a portion of the payment equal to the “Repayment Amount.” The Repayment Amount with respect to the payment of benefits shall be the smallest such amount, if any, as shall be required to be paid to the Company so that your net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in your net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, you shall pay the Excise Tax. Notwithstanding any either provision of this Section 7, if (i) there is a reduction in payments or the payment of benefits constituting “parachute payments” is required by Section 18(aas described in this section, (ii) the IRS later determines that you are liable for the Excise Tax, the payment of which would result in the maximization of your net after-tax proceeds (calculated as if your benefits had not previously been reduced), and (iii) you pay the reduction Excise Tax, then the Company shall occur in pay to you those benefits which were reduced pursuant to this section contemporaneously or as soon as administratively possible after you pays the following order unless the Associate elects in writing a different order (provided, however, Excise Tax so that such election shall be subject your net after-tax proceeds with respect to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards benefits is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationmaximized.

Appears in 2 contracts

Samples: Retention Bonus Agreement (Entropic Communications Inc), Retention Bonus Agreement (Entropic Communications Inc)

Section 280G. (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon If any Person who is a change in ownership or control “disqualified individual” (within the meaning of Section 280G of the CodeCode and the Department of Treasury regulations promulgated thereunder) would, but for this Section 18(a), be subject with respect to the excise tax imposed Company may receive any payment(s) or benefit(s) that could constitute parachute payments under Section 280G of the Code in connection with the transactions contemplated by this Agreement, then: (a) the Company shall use commercially reasonable efforts to obtain and deliver to Parent Group a Parachute Payment Waiver from each such “disqualified individual”; and (b) as soon as practicable following the delivery of the Parachute Payment Waivers (if any) to Parent Group, the Company shall prepare and distribute to its shareholders a disclosure statement describing all potential parachute payments and benefits that may be received by such disqualified individual(s) and shall submit such payments to its shareholders for approval, in each case, in accordance with the requirements of Section 4999 280G(b)(5)(B) of the Code and the Department of Treasury regulations promulgated thereunder, such that, if approved by the requisite majority of the shareholders, such payments and benefits shall not be deemed to be “parachute payments” under Section 280G of the Code (the foregoing actions, a Excise Tax280G Vote”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced . Prior to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided thatClosing, if for any reason the Audit Firm a 280G Vote is unable to, or declines to, perform such calculationsrequired and waivers are obtained from disqualified individuals, the Company shall engage such other accounting firm as deliver to Parent Group evidence reasonably satisfactory to Parent Group, (i) that a 280G Vote was solicited in conformance with Section 280G of the Audit Firm shall recommend in writing Code, and the requisite shareholder approval was obtained with respect to any payments and/or benefits that were subject to the Company to perform such calculations shareholder vote (the Audit Firm “Section 280G Approval”) or such other accounting firm(ii) that the Section 280G Approval was not obtained and as a consequence, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect pursuant to the determinations by Parachute Payment Waiver, such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a)shall not be made or provided. The form of the Parachute Payment Waiver, the reduction shall occur disclosure statement, any other materials to be submitted to the Company’s shareholders in connection with the following order unless Section 280G Approval and the Associate elects in writing a different order calculations related to the foregoing (provided, however, that such election the “Section 280G Soliciting Materials”) shall be subject to the Company’s advance review and approval if made on or after the date on by Parent Group, which the event that triggers the payment occurs and to the extent that such election does approval shall not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationunreasonably withheld.

Appears in 2 contracts

Samples: Merger Agreement (Shift4 Payments, Inc.), Merger Agreement (Shift4 Payments, Inc.)

Section 280G. (a) In To the event extent that any payment or distribution to or for the total amount benefit of payments to be received by the Associate, Executive pursuant to the terms of this Agreement or otherwiseany other plan, that are contingent upon arrangement or agreement with the Company, any of its affiliated companies, any person whose actions result in a change in of ownership or effective control (within the meaning of covered by Section 280G 280G(b)(2) of the CodeCode or any person affiliated with the Company or such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Payments”) would, but for this Section 18(a), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code Code, then the Company shall reduce the payments to the amount that is (after taking into account federal, state, local and social security taxes at the maximum marginal rates, including any excise taxes imposed by Section 4999 of the Code) one dollar less than the amount of the Payments that would subject the Executive to the Excise Tax (the “Excise TaxSafe Harbor Cap)) if, then and only if, such reduction would result in Executive receiving a higher net after-tax amount. Unless Executive shall have given prior written notice specifying a different order to the Company to effectuate the Safe Harbor Cap, the Payments to be reduced hereunder will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when the Payment would have been made to Executive until the reduction specified herein is achieved. Executive’s right to specify the order of reduction of the Payments shall apply only to the extent that it does not directly or indirectly alter the time or method of payment of any amount that is deferred compensation subject to (and not exempt from) Section 409A. (b) All determinations required to be made under this Section 9, including whether and when the Safe Harbor Cap is required and the amount of payments the reduction of the Payments pursuant to the Safe Harbor Cap and the assumptions to be received utilized in arriving at such determination, shall be made by a public accounting firm or other nationally recognized consulting firm with expertise in Section 280G of the Code that is retained by the Associate pursuant Company as of the date immediately prior to this Agreement the Change in Control (the “Calculating Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or otherwise Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the “Determination”). In the event that the Calculating Firm is serving as accountant, auditor or consultant for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized public accounting or consulting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Calculating Firm hereunder). All fees and expenses of the Calculating Firm shall be reduced to borne solely by the maximum amount that will cause Company and the total amounts Company shall enter into any agreement requested by the Calculating Firm in connection with the performance of the payments not to services hereunder. The Determination by the Calculating Firm shall be subject binding upon the Company and Executive. The Company shall bear and pay directly all costs and expenses incurred in connection with any contests or disputes with the Internal Revenue Service relating to the Excise Tax, but only if and Executive shall cooperate, to the amount extent his or her reasonable out-of such paymentspocket expenses are reimbursed by the Company, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged with any reasonable requests by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, such contests or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationdisputes.

Appears in 2 contracts

Samples: Compensation Protection Agreement (CDW Corp), Compensation Protection Agreement (CDW Corp)

Section 280G. (a) In If any of the event that the total amount of payments or benefits received or to be received by Executive (including, without limitation, any payment or benefits received in connection with the Associatetermination of Executive’s employment, whether following a Change in Control or otherwise, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise, that are contingent upon a change in ownership or control ) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code) Code and would, but for this Section 18(a)8.9, be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then prior to making the amount of payments to be received by the Associate pursuant to this Agreement or otherwise 280G Payments, a calculation shall be reduced made comparing (a) the Net Benefit (as defined below) to the maximum amount that will cause the total amounts Executive of the payments not 280G Payments after payment of the Excise Tax; to be (b) the Net Benefit to the Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax, but only . Only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, calculated under (a) above is equal to or greater less than the amount under (b) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of such payments the Associate would otherwise be entitled 280G Payments is subject to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged . “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 8.9 shall be made in a manner determined by the Company for general audit purposes that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 8.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Company (the “Audit FirmTax Counsel”) whose determinations shall perform any be conclusive and binding on the Company and Executive for all purposes. For purposes of making the calculations necessary in connection with and determinations required by this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations8.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and Executive shall engage furnish the Tax Counsel with such other accounting firm information and documents as the Audit Firm shall recommend Tax Counsel may reasonably request in writing order to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)make its determinations under this Section 8.9. The Company shall bear all expenses with respect to costs the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change Tax Counsel may reasonably incur in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.connection

Appears in 2 contracts

Samples: Employment Agreement (Celsius Holdings, Inc.), Employment Agreement (Celsius Holdings, Inc.)

Section 280G. (a) In Anything in this agreement to the contrary notwithstanding, in the event it shall be determined that the total amount of payments to be received any payment or distribution by the Associate, Company to or for the benefit of you (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement agreement or otherwise, that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for determined without regard to any additional payments required under this Section 18(a), 3) (a “Company Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by you with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then you shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by you of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Company Payments. (b) For purposes of determining whether any of the Company Payments and Gross-Up Payments (collectively the “Total Payments”) will be subject to the Excise Tax and the amount of payments to be received by such Excise Tax, (i) the Associate pursuant to this Agreement or otherwise Total Payments shall be reduced to treated as “parachute payments” within the maximum amount that will cause the total amounts meaning of Section 280G(b)(2) of the payments not to Code, and all “parachute payments” in excess of the “base amount” (as defined under Code Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, but only unless and except to the extent that, in the opinion of the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by such accountants (the “Accountants”) such Total Payments (in whole or in part) either do not constitute “parachute payments,” represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the “base amount” or are otherwise not subject to the Excise Tax, and (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Gross-Up Payment, you shall be deemed to pay U.S. federal income taxes at the highest marginal rate of U.S. federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of your residence for the calendar year in which the Company Payment is to be made, net of the maximum reduction in U.S. federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax is later determined by the Accountant or the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. (d) The Gross-Up Payment or portion thereof provided for in subsection (c) above shall be paid not later than the thirtieth day following an event occurring which subjects you to the Excise Tax; provided, however, that if the amount of such paymentsGross-Up Payment or portion thereof cannot be finally determined on or before such day, after the Company shall pay to you on such reduction and after payment day an estimate, as determined in good faith by the Accountant, of all applicable taxes on the reduced amount, is equal to or greater than the minimum amount of such payments and shall pay the Associate would otherwise remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to subsection (c) hereof, as soon as the amount thereof can reasonably be entitled to retain without such reduction determined, but in no event later than the ninetieth day after the payment occurrence of all applicable taxes, including the event subjecting you to the Excise Tax. (be) The accounting firm engaged by If any controversy arises between you and the Company for general audit purposes Internal Revenue Service or any state or local taxing authority (the a Audit FirmTaxing Authority”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by treatment on any return of the Gross-Up Payment, or of any Company Payment, or with respect to any return which a Taxing Authority asserts should show an Excise Tax, including, without limitation, any audit, protest to an appeals authority of a Taxing Authority or litigation (“Controversy”), (i) the Company shall have the right to participate with you in the handling of such Accounting Firm required Controversy, (ii) the Company shall have the right, solely with respect to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentationa Controversy, to direct you to protest or contest any proposed adjustment or deficiency, initiate an appeals procedure within any Taxing Authority, commence any judicial proceeding, make any settlement agreement, or file a claim for refund of tax, and (iii) you shall not take any of such steps without the Associate prior written approval of the Company, which the Company shall not unreasonably withhold. If the Company so elects, you shall be represented in any Controversy by attorneys, accountants, and other advisors selected by the Company, and the Company within fifteen (15) calendar days after shall pay the date on which fees, costs and expenses of such attorneys, accountants, or advisors, and any tax liability you may incur as a result of such payment. You shall promptly notify the Associate’s right Company of any communication with a Taxing Authority, and you shall promptly furnish to the Company copies of any written correspondence, notices, or documents received from a Taxing Authority relating to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the CompanyControversy. If the Accounting Firm determines that no Excise Tax is payable You shall cooperate fully with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless handling of any Controversy by furnishing the Associate elects in writing a different order (Company any information or documentation relating to or bearing upon the Controversy; provided, however, that such election you shall not be subject obligated to furnish to the Company copies of any portion of your tax returns which do not bear upon, and are not affected by, the Controversy. (f) You shall pay over to the Company’s approval if made , with ten (10) days after receipt thereof, any refund you receive from any Taxing Authority of all or any portion of the Gross-Up Payment or Excise Tax, together with any interest you receive from such Taxing Authority on or after the date on which the event that triggers the payment occurs and such refund. For purposes of this Section 3, a reduction in your tax liability attributable to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order previous payment of the date on which Gross-Up Payment or the Excise Tax shall be deemed to be a refund. If you would have received a refund of all or any portion of the Gross-Up Payment or the Excise Tax, except that a Taxing Authority offset the amount of such cash payments would otherwise be made refund against other tax liabilities, interest, or penalties, you shall pay the amount of such offset over to the Company, together with the cash payments that amount of interest you would otherwise be made last being reduced first); cancellation have received from the Taxing Authority if such offset had been an actual refund, within ten (10) days after receipt of accelerated vesting notice from the Taxing Authority of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationoffset.

Appears in 2 contracts

Samples: Letter Agreement (Monster Worldwide Inc), Letter Agreement (Monster Worldwide Inc)

Section 280G. Prior to the Closing, the Company shall use reasonable endeavors to obtain from each “disqualified individual” (aas defined in Section 280G(c) In of the event Code) with respect to the Company or its Subsidiaries who may receive payments and/or benefits that could constitute “parachute payments” (as defined in Section 280G(b)(2) of the total amount of payments to be received Code) in connection with the transactions contemplated by the Associate, pursuant to this Agreement a waiver of any such payments or otherwisebenefits, such that are contingent upon a change in ownership after giving effect to all waivers, the Company, its Subsidiaries, and, if applicable, Industrea shall not have made or control (within the meaning of provided, nor shall be required to make or provide, any payments or benefits that would not be deductible under Section 280G of the Code) would, but for this Section 18(a), Code or that would be subject to the an excise tax imposed by Tax under Section 4999 of the Code (the waived payments and benefits waived shall be collectively referred to as the Excise TaxSection 280G Waived Payments”), then the amount of payments to be received by the Associate pursuant to this Agreement . On or otherwise shall be reduced prior to the maximum amount that will cause Closing Date, the total amounts Company shall use commercially reasonable efforts to submit, accompanied by adequate disclosure, for equityholder approval all Section 280G Waived Payments in accordance with the terms of Section 280G(b)(5)(B) of the payments not to be subject Code and the U.S. Treasury Regulations thereunder. If equityholder approval is obtained, the Company shall promptly, but in all events prior to the Excise TaxClosing, but only if the amount deliver to Industrea evidence reasonably satisfactory to Industrea of such paymentsapproval. Prior to the Closing Date and prior to solicitation of equityholder approval, after such reduction the Company shall provide Industrea with (i) drafts of any waivers and after payment of all applicable taxes on equityholder disclosure documents relating to the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged waiver and vote prepared by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 188.5; provided that, if for any reason and (ii) reasonable documentation regarding the Audit Firm is unable to, or declines to, perform such calculations, determination of the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)Section 280G Waived Payments. The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change consider in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of any comments made by Industrea prior to obtaining the Accounting Firm made hereunder shall be final, binding, waivers and conclusive upon Associate and soliciting the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationvote.

Appears in 2 contracts

Samples: Merger Agreement (Industrea Acquisition Corp.), Merger Agreement

Section 280G. (a) In The Sellers shall cause the event that Company and each of its Subsidiaries to use best efforts to obtain, prior to the total amount initiation of payments the equityholder approval procedure described in Section 8.04(c), from each Person to whom any payment or benefit is required or proposed to be received made that could constitute “parachute payments” under Section 280G(b)(2) of the Code and Treasury Regulations promulgated thereunder (“Section 280G Payments”), a written agreement waiving such Person’s right to receive some or all of such payment or benefit (the “Waived Benefits”), to the extent necessary so that all remaining payments and benefits applicable to such Person shall not be deemed a parachute payment, and accepting in substitution for the Waived Benefits the right to receive the Waived Benefits only if approved by the Associateequityholders of the Company and its applicable Subsidiaries in a manner that complies with Section 280G(b)(5)(B) of the Code and the Treasury Regulations issued thereunder. (b) In connection with the foregoing, the Purchaser shall provide the Sellers with all information and documents necessary to allow the Company and each of its Subsidiaries to determine whether any payments made or to be made or benefits granted or to be granted pursuant to this Agreement any employment agreement or otherwiseother agreement, that are contingent upon a change in ownership arrangement or control contract entered into or negotiated by the Purchaser or any of its respective Affiliates (“Purchaser Payments”), together with all Section 280G Payments, could reasonably be considered to be “parachute payments” within the meaning of Section 280G of the Code280G(b)(2) would, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced prior to the maximum amount that will cause the total amounts of the payments not to be subject Closing Date (and shall further provide any such updated information as is necessary prior to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise TaxClosing Date). (bc) The accounting firm engaged by Prior to the Closing, the Sellers shall cause the Company for general audit purposes (and each of its Subsidiaries to use its reasonable efforts to obtain the “Audit Firm”approval by such number of equityholders of the Company in a manner that complies with the terms of Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations, of the right of each Person described in Section 8.04(a) to receive or retain, as applicable, such Person’s Waived Benefits, provided that in no event shall perform any calculations necessary in connection with this Section 18; provided that8.04 be construed to require the Sellers, if for the Company or any reason of its Subsidiaries to compel any Person to waive any existing rights under any contract or agreement that such Person has with the Audit Firm is unable toCompany, any Subsidiary of the Company or declines toany other Person. Additionally, perform such calculationsat least three (3) Business Days prior to obtaining the Waived Benefits, and prior to seeking the 280G Approval, the Company shall engage provide drafts of such other accounting firm as the Audit Firm shall recommend in writing waivers and such equityholder approval materials to the Company Purchaser for its review and approval, and shall, in its sole discretion, incorporate any reasonable comments made by the Purchaser therein. In no event shall the Sellers be deemed in breach of this Section 8.04 if any such Person refuses to perform waive any such calculations rights or if the equityholders fail to approve any Waived Benefits. (d) Prior to the Audit Firm or such other accounting firmClosing, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses deliver to the Purchaser evidence that a vote of the Company’s stockholders who are entitled to vote was solicited in accordance with the foregoing provisions of this Section 8.04 and that either (1) the requisite number of stockholder votes was obtained with respect to the determinations by such Accounting Firm required to Waived Benefits (the “280G Approval”), or (2) that the 280G Approval was not obtained and, as a consequence, the Waived Benefits shall not be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 2 contracts

Samples: Share Purchase Agreement, Share Purchase Agreement (Huntsman International LLC)

Section 280G. (a) In the event that the total amount of payments any excise tax could reasonably be expected to be received by payable under Section 4999 of the AssociateCode in connection with the transactions contemplated hereunder (either alone or together with any other event), pursuant the Company shall use commercially reasonable efforts to this Agreement or otherwise, that are contingent upon obtain no later than the fifth Business Day immediately prior to the Effective Time a change in ownership or control waiver from each “disqualified individual” (within the meaning of Code Section 280G(c)) entitled to receive a “parachute payment” (within the meaning of Code Section 280G(b)) in connection with the transactions contemplated hereunder of his or her right 45 NY\7370590.17 to receive such payment or benefit so that all remaining payments or benefits applicable to such disqualified individual shall not be deemed to be a parachute payment that would not be deductible under Section 280G of the Code, and to accept in substitution therefor the right to receive such waived payments or benefits only if approved by the stockholders of the Company in a manner that complies with Code Section 280G(b)(5). In such event, prior to the Effective Time, the Company shall submit to all Persons entitled to vote (within the meaning of the Treasury Regulations under Section 280G of the Code) wouldthe material facts concerning all payments and benefits that, but for this in the absence of shareholder approval of such payments and benefits, would reasonably be expected to constitute “parachute payments” within the meaning Section 18(a280G(b)(2) of the Code (“Parachute Payments”), in form and substance reasonably satisfactory to Buyer and its counsel, which satisfy all requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder (the “280G Stockholder Approval”). The company shall cause such Persons to hold a vote seeking approval of any such Parachute Payments to the extent such Parachute Payment exceeds 2.999 times the “base amount” (within the meaning of Code Section 280G(b)(3) of such disqualified individual). The determination of which payments or benefits may be deemed to constitute parachute payments, the forms of each waiver of such payments, and the disclosure documents (and related calculations) and other circumstances of any vote shall each be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Buyer’s advance review and comment, then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations incorporate any reasonable comments made by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationBuyer.

Appears in 2 contracts

Samples: Merger Agreement, Merger Agreement

Section 280G. (a) In Notwithstanding any other provision of this Agreement, in the event that the total amount Executive becomes entitled to receive or receives any payments, options, awards or benefits (including, without limitation, the monetary value of payments to be received by any non-cash benefits and the Associate, pursuant to accelerated vesting of stock options) under this Agreement or otherwiseunder any other plan, agreement or arrangement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person (collectively, the “Payments”), that are contingent upon a change may separately or in ownership or control (the aggregate constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any similar or successor provision (“Section 280G”) wouldand it is determined that, but for this Section 18(a8.8(a), any of the Payments will be subject to the any excise tax imposed by pursuant to Section 4999 of the Code (or any similar or successor provision, the “Excise Tax”)Company shall pay to the Executive an amount equal to the Payments, then the amount of payments to be received reduced by the Associate pursuant minimum amount necessary to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts prevent any portion of the payments not to be subject to Payments from being an “excess parachute payment” (within the Excise Tax, but only if the amount meaning of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise TaxSection 280G). (b) The accounting firm engaged All computations and determinations called for by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company 8.8 shall engage such other accounting firm as the Audit Firm shall recommend be made and reported in writing to the Company to perform and the Executive by an independent accounting firm or independent tax counsel appointed by the Company (the “Tax Advisor”), and all such computations and determinations shall be conclusive and binding on the Company and the Executive. For purposes of such calculations (and determinations, the Audit Firm or Tax Advisor may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Tax Advisor such other accounting firm, as applicable, being hereinafter referred to information and documents as the “Accounting Firm”)Tax Advisor may reasonably request in order to make their required calculations and determinations. The Company shall bear all fees and expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested charged by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable Advisor in connection with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order its services. (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. c) In the event that accelerated vesting of stock awards Section 8.8(a) applies and a reduction is required to be reducedapplied to the Payments thereunder, such accelerated vesting the Payments shall be cancelled reduced by the Company in its reasonable discretion in the reverse order following order: (i) reduction of any Payments that are exempt from Code Section 409A and (ii) reduction of any Payments that are subject to Code Section 409A on a pro-rata basis or such other manner that complies with Code Section 409A, as determined by the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCompany.

Appears in 2 contracts

Samples: Change of Control Agreement (Fisher Communications Inc), Change of Control Agreement (Fisher Communications Inc)

Section 280G. (a) In This Section 18 will apply if the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon Executive is a change in ownership or control (“disqualified individual” within the meaning of Section 280G 1.280G-1, Q/A-15 of the Treasury regulations. In the event of an event constituting a change in the ownership or effective control of the Company or ownership of a substantial portion of the assets of the Company described in Section 280G(b)(2)(A)(i) of the Code) would, but for this Section 18(athe Company, at its sole expense, will cause its independent auditors promptly to review all payments, accelerations, distributions and benefits that have been made to or provided to, and are to be made, or may be made, to or provided to, the Executive under the Agreement (irrespective of whether severance payment and benefits or other payments and benefits are then payable to the Executive at that time), and any other agreement or plan under which the Executive may individually or collectively benefit (collectively the “Original Payments”), to determine the applicability of Section 4999 of the Code to the Executive in connection with such event. The Company’s independent auditors will perform this analysis in conformity with the foregoing provisions and will provide the Executive with a copy of their analysis and determination. Notwithstanding anything contained in this Agreement to the contrary, to the extent that the Original Payments would be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall Original Payments will be reduced (but not below zero) to the maximum amount extent necessary so that no Original Payment will cause the total amounts of the payments not to be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by the Executive will exceed the net after-tax benefit received by him or her if no such reduction was made. For purposes of this Agreement, “net after-tax benefit” will mean (a) the Original Payments which the Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (b) the amount of such paymentsall federal, after such reduction state and after payment of all applicable local income taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses payable with respect to the determinations by such Accounting Firm required to foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, paid to the Associate and Executive (based on the Company within fifteen rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (15c) calendar days after the date on which amount of the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, payments and conclusive upon Associate and the Companybenefits described in (a) above. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a)this provision, the reduction shall occur payments and benefits will be reduced in the following order unless order: any cash severance to which the Associate elects in writing a different order Executive becomes entitled (providedstarting with the last payment due), howeverthen other cash amounts that are parachute payments (starting with the last payment due), then any stock option awards that such election shall have exercise prices higher than the then-fair market value price of the stock (based on the latest vesting tranches), then restricted stock and restricted stock units based on the latest awards scheduled to be subject to distributed, and then other stock options based on the latest vesting tranches. The fees and expenses of the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (auditor for its services in reverse order of the date on which such cash payments would otherwise be made connection with the cash payments that would otherwise determinations and calculations contemplated by this provision will be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In borne by the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCompany.

Appears in 2 contracts

Samples: Change in Control Severance Agreement (DT Midstream, Inc.), Change in Control Severance Agreement (DT Midstream, Inc.)

Section 280G. (a) In Notwithstanding anything in this Agreement to the contrary, in the event it will be determined that the total amount of payments to be received any payment or distribution by the Associate, Equity Group to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, that payments or distributions are contingent upon a change in ownership or control (within the meaning of Section 280G of the Codehereinafter referred to as “Payments”) would, but for this Section 18(a)if paid, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced then, prior to the maximum amount that making of any Payments to Executive, a calculation will cause be made comparing (i) the total amounts net after-tax benefit to Executive of the payments not Payments after payment by Executive of the Excise Tax, to be (ii) the net after-tax benefit to Executive if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax, but only if . If the amount calculated under clause (i) of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, immediately preceding sentence is equal to or greater less than the amount of such payments calculated under clause (ii) thereof, then the Associate would otherwise Payments will be entitled limited to retain without such reduction after the payment of all applicable taxes, including extent necessary to avoid triggering the Excise TaxTax (the “Reduced Amount”). (b) The reduction of the Payments, if applicable, will be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the Change of Control, as determined by the accounting firm engaged by that was the Company for general audit purposes Bank’s independent auditor immediately before the Change of Control (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Determination Firm”). The Company shall bear all expenses For purposes of this Section 7, present value will be determined in accordance with respect Section 280G(d)(4) of the Code. For purposes of this Section 7, the “Parachute Value” of a Payment means the present value as of the date of the Change of Control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (c) All determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall 7, including whether an Excise Tax would otherwise be imposed, whether the Payments will be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, will be made by the Determination Firm, which will provide its calculations, together with detailed supporting documentation, calculations both to the Associate Bank and the Company Executive within fifteen (15) calendar business days after the date on which the Associate’s right receipt of notice from Executive that a Payment is due to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) be made, or such other earlier time as is requested by the Associate Bank. All fees and expenses of the Determination Firm will be borne solely by the Bank. Any determination by the Determination Firm will be binding upon the Bank and Executive. (d) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that amounts will have been paid or distributed by the CompanyEquity Group to or for the benefit of Executive that should not have been so paid or distributed (an “Overpayment”) or that additional amounts that will have not been paid or distributed by the Equity Group to or for the benefit of Executive could have been so paid or distributed (an “Underpayment”). If In the Accounting event that the Determination Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Equity Group or Executive that the Determination Firm believes has a high probability of success determines that no Excise Tax is payable with respect an Overpayment has been made, any such Overpayment paid or distributed by the Equity Group to such payments, it shall furnish or for the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax benefit of Executive will be imposed with respect repaid by Executive to such payments. Any good faith determinations the appropriate member of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and Equity Group together with interest at the Company. If a reduction applicable federal rate provided for in payments or benefits constituting “parachute payments” is required by Section 18(a), 7872(f)(2)(A) of the reduction shall occur in the following order unless the Associate elects in writing a different order (Code; provided, however, that no such election shall repayment will be subject to the Company’s approval required if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does deemed repayment would not violate Code either reduce the amount on which Executive is subject to tax under Section 409A): reduction of cash payments (in reverse order 1 and Section 4999 of the date on which Code or generate a refund of such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefitstaxes. In the event that accelerated vesting the Determination Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment will be promptly paid by the Equity Group to or for the benefit of stock awards is to be reducedExecutive, such accelerated vesting shall be cancelled together with interest at the applicable federal rate provided for in the reverse order Section 7872(f)(2)(A) of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.Code, but no later than March

Appears in 2 contracts

Samples: Employment Agreement (Equity Bancshares Inc), Employment Agreement (Equity Bancshares Inc)

Section 280G. The Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment received hereunder, including, without limitation, any excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (a) In the event “Code”); provided, however, that the total amount of payments any payment or benefit received or to be received by the Associate, Executive in connection with a Change in Control or the termination of the Executive’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or otherwiseany other plan, arrangements or agreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”) shall be reduced to the extent necessary so that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a), no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code (but only if, by reason of such reduction, the “Excise Tax”), then net after-tax benefit received by the amount of payments to Executive shall exceed the net after-tax benefit that would be received by the Associate pursuant to Executive if no such reduction was made. For purposes of this Agreement or otherwise Section 2.3, “net after-tax benefit” shall be reduced to the maximum amount that will cause mean (i) the total amounts of all payments and the value of all benefits which the Executive receives or is then entitled to receive from the Company that would constitute “excess parachute payments” within the meaning of Section 280G of the payments not to be subject to the Excise TaxCode, but only if less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Executive (based on the rate in effect for such payments, after such reduction and after year as set forth in the Code as in effect at the time of the first payment of all applicable taxes on the reduced amountforegoing), is equal to or greater than less (iii) the amount of such excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Associate would otherwise Code. The foregoing determination shall be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The made by a nationally recognized accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The ) selected by the Company shall bear all expenses with respect and reasonably acceptable to the determinations by such Accounting Firm required to be made hereunderExecutive. The Accounting Firm engaged to make the determinations under this Section 18 shall provide submit its calculations, together with determination and detailed supporting documentation, calculations to both the Associate Executive and the Company within fifteen (15) calendar days after receipt of a notice from either the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate Company or the Company) or Executive that the Executive may receive payments which may be “parachute payments.” If the Accounting Firm determines that a reduction is required by this Section 2.3, the cash portion of the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such other time as requested by reduced amount to the Associate or the CompanyExecutive. If the Accounting Firm determines that no Excise Tax is payable with respect to such paymentsnone of the Total Payments, after taking into account any reduction required by this Section 2.3, constitutes a “parachute payment” within the meaning of Section 280G of the Code, it shall will, at the same time as it makes such determination, furnish the Associate Executive and the Company with an opinion that Executive has substantial authority not to report any excise tax under Section 4999 of the Code on his federal income tax return. The Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of the Executive or the Company, as the case may be, reasonably acceptable to Associate that no Excise Tax will be imposed requested by the Accounting Firm, and otherwise cooperate with respect to such paymentsthe Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 2.3. Any good faith determinations The fees and expenses of the Accounting Firm made hereunder for its services in connection with the determinations and calculations contemplated by this Section 2.3 shall be final, binding, and conclusive upon Associate and borne by the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 2 contracts

Samples: Severance Agreement (Reddy Ice Holdings Inc), Severance Agreement (Reddy Ice Holdings Inc)

Section 280G. (a) In To the event extent that any payment or distribution to or for the total amount benefit of payments to be received by the Associate, Executive pursuant to the terms of this Agreement or otherwiseany other plan, that are contingent upon arrangement or agreement with the Company, any of its affiliated companies, any person whose actions result in a change in of ownership or effective control (within the meaning of covered by Section 280G 280G(b)(2) of the CodeCode or any person affiliated with the Company or such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Payments”) would, but for this Section 18(a), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code Code, then the Company shall reduce the payments to the amount that is (after taking into account federal, state, local and social security taxes at the maximum marginal rates, including any excise taxes imposed by Section 4999 of the Code) one dollar less than the amount of the Payments that would subject the Executive to the Excise Tax (the “Excise TaxSafe Harbor Cap)) if, then and only if, such reduction would result in Executive receiving a higher net after-tax amount. Unless Executive shall have given prior written notice specifying a different order to the Company to effectuate the Safe Harbor Cap, the Payments to be reduced hereunder will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when the Payment would have been made to Executive until the reduction specified herein is achieved. Executive’s right to specify the order of reduction of the Payments shall apply only to the extent that it does not directly or indirectly alter the time or method of payment of any amount that is deferred compensation subject to (and not exempt from) Section 409A. (b) All determinations required to be made under this Section 6, including whether and when the Safe Harbor Cap is required and the amount of payments the reduction of the Payments pursuant to the Safe Harbor Cap and the assumptions to be received utilized in arriving at such determination, shall be made by a public accounting firm or other nationally recognized consulting firm with expertise in Section 280G of the Code that is retained by the Associate pursuant Company as of the date immediately prior to this Agreement the Change in Control (the “Calculating Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or otherwise Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the “Determination”). In the event that the Calculating Firm is serving as accountant, auditor or consultant for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized public accounting or consulting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Calculating Firm hereunder). All fees and expenses of the Calculating Firm shall be reduced to borne solely by the maximum amount that will cause Company and the total amounts Company shall enter into any agreement requested by the Calculating Firm in connection with the performance of the payments not to services hereunder. The Determination by the Calculating Firm shall be subject binding upon the Company and Executive. The Company shall bear and pay directly all costs and expenses incurred in connection with any contests or disputes with the Internal Revenue Service relating to the Excise Tax, but only if and Executive shall cooperate, to the amount extent Executive’s reasonable out-of such paymentspocket expenses are reimbursed by the Company, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged with any reasonable requests by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, such contests or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationdisputes.

Appears in 2 contracts

Samples: Compensation Protection Agreement (CDW Corp), Compensation Protection Agreement (CDW Corp)

Section 280G. | (a) In The Executive shall bear all expense of, and be solely responsible for, any Excise Tax (as defined below) imposed on the Executive; provided, however, in the event that the total amount Accounting Firm (as defined below) determines that receipt of all payments or distributions in the nature of compensation to be received by or for the Associatebenefit of the Executive, whether paid or payable pursuant to this Agreement or otherwiseotherwise (the “Payments”) 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 are contingent upon no reduction of a change 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 ownership any other payment or control benefit being deemed a substitute (within the meaning of Section 280G 1.409A-3(f) of the CodeTreasury Regulations) wouldfor 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), but for 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 18(a), shall be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received borne by the Associate pursuant Company. (c) For purposes of determining whether and the extent to this Agreement or otherwise shall be reduced to which the maximum amount that Payments will cause the total amounts of the payments not to be subject to the Excise Tax, but only if (i) no portion of the amount Payments the receipt or enjoyment of which the Executive shall have waived at such paymentstime 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, after such reduction and after payment (ii) no portion of all applicable taxes on the reduced amountPayments shall be taken into account which, is equal to or greater than in the amount opinion of such payments the Associate would otherwise be entitled to retain without such reduction after Accounting Firm, does not constitute a “parachute payment” within the payment meaning of all applicable taxesSection 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, including 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, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (bd) The Company and the Executive shall provide the Accounting Firm access to copies of any books, records, and documents in their possession as reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 8. For purposes of making the calculations required by this Section 8, the Accounting Firm may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999. (e) For purposes of this Agreement, the term “Accounting Firm” shall mean a nationally recognized accounting firm, or actuarial, benefits or compensation consulting firm engaged (with experience in performing the calculations regarding the applicability of Code Section 280G and of the tax imposed by Code Section 4999) selected by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing immediately prior to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationControl.

Appears in 1 contract

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

Section 280G. The Company shall use its reasonable best efforts to obtain from each Person (aeach, a “Disqualified Individual”) In the event that the total amount of payments to whom any payment or benefit is required or proposed to be received made in connection with the transactions contemplated by this Agreement that would constitute “parachute payments” under Section 280G(b)(2) of the Code (“Section 280G Payments”) an executed written agreement waiving such Disqualified Individual’s right to receive some or all of such payment or benefit (the “Waived Benefits”), to the extent necessary so that all remaining payments and benefits applicable to such Disqualified Individual shall not be deemed a parachute payment, and accepting in substitution for the Waived Benefits the right to receive the Waived Benefits only if approved by the Associatestockholders of the Company in a manner that complies with Section 280G(b)(5)(B) of the Code (a “Section 280G Waiver”). In connection with the foregoing, Parent shall provide the Company with all information reasonably necessary to allow the Company to determine whether any payments made or to be made or benefits granted or to be granted pursuant to this Agreement any employment agreement or otherwiseother agreement, that are contingent upon a change in ownership arrangement or control (Contract entered into or negotiated by Parent or its Affiliates, together with all other Section 280G Payments, would reasonably be considered to be “parachute payments” within the meaning of Section 280G of the Code280G(b)(2) would, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code at least seven (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced 7) calendar days prior to the maximum amount that will cause the total amounts of the payments not to be subject Closing Date (and shall further provide any such updated information as is reasonably necessary prior to the Excise Tax, but only if Closing Date). Prior to the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculationsClosing, the Company shall engage submit the Waived Benefits of each Disqualified Individual who has executed a Section 280G Waiver in accordance with this Section 4.7 for approval of the Company’s stockholders and such other accounting firm as Disqualified Individual’s right to receive the Audit Firm Waived Benefits shall recommend be conditioned upon receipt of the requisite approval by the Company’s stockholders in writing to a manner that complies with Section 280G(b)(5)(B) of the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)Code. The Company shall bear all expenses provide Parent and its counsel with a copy of the draft Section 280G Waiver and the draft shareholder approval materials contemplated by this Section 4.7 within a reasonable time prior to delivery to each Disqualified Individual and the stockholders of the Company of such Section 280G Waiver and shareholder approval materials, respectively (and, in any event, at least five (5) calendar days prior to the Closing Date), and the Company shall consider in good faith any changes reasonably requested by Parent or its counsel. Prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the shareholders of the Company was solicited in accordance with this Section 4.7 with respect to each Person who executes a Section 280G Waiver and that either (i) the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable requisite shareholder approval was obtained with respect to such paymentseach Person who executes a Section 280G Waiver, it shall furnish or (ii) the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be finalrequisite shareholder approval was not obtained and, binding, and conclusive upon Associate and the Company. If as a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a)consequence, the reduction Section 280G Payments shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing any Person who executes a different order for cancellationSection 280G Waiver.

Appears in 1 contract

Samples: Merger Agreement (Hill-Rom Holdings, Inc.)

Section 280G. (a) In Notwithstanding anything in this Agreement to the contrary, in the event it will be determined that the total amount of payments to be received any payment or distribution by the Associate, Equity Group to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, that payments or distributions are contingent upon a change in ownership or control (within the meaning of Section 280G of the Codehereinafter referred to as “Payments”) would, but for this Section 18(a)if paid, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced then, prior to the maximum amount that making of any Payments to Executive, a calculation will cause be made comparing (i) the total amounts net after-tax benefit to Executive of the payments not Payments after payment by Executive of the Excise Tax, to be (ii) the net after-tax benefit to Executive if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax, but only if . If the amount calculated under clause (i) of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, immediately preceding sentence is equal to or greater less than the amount of such payments calculated under clause (ii) thereof, then the Associate would otherwise Payments will be entitled limited to retain without such reduction after the payment of all applicable taxes, including extent necessary to avoid triggering the Excise TaxTax (the “Reduced Amount”). (b) The reduction of the Payments, if applicable, will be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the Change of Control, as determined by the accounting firm engaged by that was the Company for general audit purposes Bank’s independent auditor immediately before the Change of Control (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Determination Firm”). The Company shall bear all expenses For purposes of this Section 7, present value will be determined in accordance with respect Section 280G(d)(4) of the Code. For purposes of this Section 7, the “Parachute Value” of a Payment means the present value as of the date of the Change of Control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (c) All determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall 7, including whether an Excise Tax would otherwise be imposed, whether the Payments will be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, will be made by the Determination Firm, which will provide its calculations, together with detailed supporting documentation, calculations both to the Associate Bank and the Company Executive within fifteen (15) calendar business days after the date on which the Associate’s right receipt of notice from Executive that a Payment is due to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) be made, or such other earlier time as is requested by the Associate Bank. All fees and expenses of the Determination Firm will be borne solely by the Bank. Any determination by the Determination Firm will be binding upon the Bank and Executive. (d) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that amounts will have been paid or distributed by the CompanyEquity Group to or for the benefit of Executive that should not have been so paid or distributed (an “Overpayment”) or that additional amounts that will have not been paid or distributed by the Equity Group to or for the benefit of Executive could have been so paid or distributed (an “Underpayment”). If In the Accounting event that the Determination Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Equity Group or Executive that the Determination Firm believes has a high probability of success determines that no Excise Tax is payable with respect an Overpayment has been made, any such Overpayment paid or distributed by the Equity Group to such payments, it shall furnish or for the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax benefit of Executive will be imposed with respect repaid by Executive to such payments. Any good faith determinations the appropriate member of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and Equity Group together with interest at the Company. If a reduction applicable federal rate provided for in payments or benefits constituting “parachute payments” is required by Section 18(a), 7872(f)(2)(A) of the reduction shall occur in the following order unless the Associate elects in writing a different order (Code; provided, however, that no such election shall repayment will be required if and to the extent such deemed repayment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the CompanyCode or generate a refund of such taxes. In the event that the Determination Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment will be (initials) ________ - 10 - 12.15.21 Final 1-27-21 revison to Xxxxxxx Employment Agreement. .docx promptly paid by the Equity Group to or for the benefit of Executive, together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. (e) To the extent requested by Executive, the Bank will cooperate with the Executive in good faith in valuing, and the Determination Firm will take into account the value of, services provided or to be provided by Executive (including Executive’s approval if made agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant) before, on or after the date on which of a change in ownership or control of Parent or the event that triggers Bank (within the payment occurs and to the extent that such election does not violate Code Section 409A): reduction meaning of cash payments (in reverse order Q&A-2(b) of the date on which such cash payments would otherwise be made with final regulations under Section 280G of the cash payments that would otherwise be made last being reduced firstCode); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall that payments in respect of such services may be cancelled in considered reasonable compensation within the reverse order meaning of Q&A-9 and Q&A-40 to Q&A-44 of the grant date final regulations under Section 280G of the Associate’s stock awards unless Code and/or exempt from the Associate elects definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in writing a different order for cancellationaccordance with Q&A-5(a) of the final regulations under Section 280G of the Code.

Appears in 1 contract

Samples: Employment Agreement (Equity Bancshares Inc)

Section 280G. (a) In If and to the event extent Rotor and the Company agree in good faith that the total amount of payments to be received transactions contemplated by the Associate, pursuant to this Agreement or otherwise, that are contingent upon constitute a change in ownership or control (event” within the meaning of Section 280G of the Code) would, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing (a) prior to the Company Closing Date, solicit and use reasonable best efforts to perform obtain from each “disqualified individual” (within the meaning of Section 280G(c) of the Code) who would receive or retain any payment or benefits that would constitute a “parachute payment” (within the meaning of Section 280G(b)(2)(A) of the Code) a waiver of such calculations disqualified individual’s rights to some or all of such payments or benefits (the Audit Firm or “Waived 280G Benefits”) so that no payments and/or benefits shall be deemed to be “excess parachute payments” (within the meaning of Section 280G(b)(1) of the Code) and (b) prior to the Closing Date submit to a Company shareholder vote (along with adequate disclosure satisfying the requirements of Section 280G(b)(5)(B)(ii) of the Code and any regulations promulgated thereunder) the right of any such other accounting firm“disqualified individual” to receive the Waived 280G Benefits. Prior to soliciting such waivers and approval materials, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses provide drafts of the calculations, waivers and approval materials to Rotor for its review and comment no later than five (5) Business Days prior to soliciting such waivers and soliciting such approval, and the Company shall consider in good faith any comments provided by Rotor. If any of the Waived 280G Benefits fail to be approved in accordance with the requirements of Section 280G(b)(5)(B) of the Code as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing, the Company shall deliver to Rotor evidence reasonably acceptable to Rotor that a vote of the Company shareholders was solicited in accordance with the foregoing provisions of this Section 5.19 and that either (i) the requisite number of votes of the Company shareholders was obtained with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make Waived 280G Benefits (the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company“280G Approval”) or such other time (ii) the 280G Approval was not obtained, and, as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a)consequence, the reduction Waived 280G Benefits shall occur in the following order unless the Associate elects in writing a different order (not be retained or provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 1 contract

Samples: Merger Agreement (Rotor Acquisition Corp.)

Section 280G. (a) In the event that the total amount of payments to be received by the AssociateExecutive, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a20(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate Executive pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate Executive would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax, all as determined in good faith by the Company. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)20. The Company shall bear all expenses with respect to the determinations by such Accounting Firm accounting firm required to be made hereunder. The Accounting Firm accounting firm engaged to make the determinations under this Section 18 20 shall provide its calculations, together with detailed supporting documentation, to the Associate Executive and the Company within fifteen (15) 15 calendar days after the date on which the AssociateExecutive’s right to a payment contingent on a Change change in Control control is triggered (if requested at that time by Associate Executive or the Company) or such other time as requested by the Associate Executive or the Company. If the Accounting Firm accounting firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate Executive and the Company with an opinion reasonably acceptable to Associate Executive that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm accounting firm made hereunder shall be final, binding, and conclusive upon Associate Executive and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a20(a), the reduction shall occur in the following order unless the Associate Executive elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the AssociateExecutive’s stock awards unless the Associate Executive elects in writing a different order for cancellation.

Appears in 1 contract

Samples: Executive Agreement (Outbrain Inc.)

Section 280G. (a) In Notwithstanding anything contained in this Agreement to the event contrary, to the extent that the total amount of payments to be received by the Associate, pursuant to and benefits provided under this Agreement and under any other plan or otherwiseagreement (collectively, that are contingent upon a change in ownership or control (within the meaning of Section 280G of “Payments”) would subject the Code) would, but for this Section 18(a), be subject Executive to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)) imposed under Section 4999 of the Code, then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise Payments shall be reduced (but not below zero) to the maximum amount extent necessary such that will cause the total amounts no portion of the payments not to Payments will be subject to the Excise Tax. . All determinations related to the Excise Tax under this Section 9 shall be made by the 280G Firm, but only if the amount of and all such payments, after such reduction determinations shall be final and after payment of all applicable taxes binding on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculationsExecutive, the Company shall engage such other accounting firm as and the Audit Company’s Subsidiaries and Affiliates. The fees and expenses of the 280G Firm shall recommend in writing be paid by the Company. At the time of the initial determination by the 280G Firm hereunder, it is possible that the total Payments will have been made to the Company Executive which should not have been made (an “Overpayment”) or that an amount which will not have been made to perform such calculations the Executive could have been made (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the an Accounting FirmUnderpayment”). The Company shall bear all expenses , in each case, consistent with respect to the determinations by such Accounting Firm calculations required to be made hereunder. The Accounting In the event that the 280G Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Executive that the 280G Firm engaged believes has a high probability of success, determines an Overpayment has been made, any such Overpayment paid or distributed to make or for the determinations under this Section 18 benefit of the Executive shall provide its calculations, be repaid by the Executive to the payor (or such person designated by the payor) together with detailed supporting documentation, to interest at the Associate and the Company within fifteen (15applicable Federal rate provided in Section 7872(f)(2) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (Code; provided, however, that such election no amount shall be subject payable by the Executive to the Company’s approval payor (or such person designated by the payor) if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does deemed payment would not violate Code either reduce the amount on which the Executive is subject to tax under Section 409A): reduction of cash payments (in reverse order 4999 of the date on which Code or generate a refund of such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefitstaxes. In the event that accelerated vesting of stock awards is to be reducedthe 280G Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such accelerated vesting Underpayment shall be cancelled in promptly paid to or for the reverse order benefit of the grant date Executive together with interest at the applicable Federal rate provided in Section 7872(f)(2) of the AssociateCode; provided further that any such Underpayment shall constitute a payment (within the meaning of Treasury Regulation Section 1.409A-2(b)(2)) separate and apart from the total Payments; and provided, further that any such Underpayment shall be deemed a disputed payment (within the meaning of Treasury Regulation Section 1.409A-3(g)) and shall be made no later than the end of the Executive’s stock awards unless first taxable year in which the Associate elects in writing a different order for cancellation280G Firm determines pursuant to this Section 9 that such Underpayment is due.

Appears in 1 contract

Samples: Change of Control Retention and Severance Agreement (Waddell & Reed Financial Inc)

Section 280G. (a) In Sellers shall obtain and deliver to Buyer, prior to the event that initiation of the total amount of payments requisite stockholder approval procedure under Section 6.10(b), a Parachute Payment Waiver from each Person who is, with respect to be received by the AssociateCompany, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control “disqualified individual” (within the meaning of Section 280G G) and who will or may, absent such Parachute Payment Waiver, receive or have the right or entitlement to receive a “parachute payment” (within the meaning of Section 280G) in connection with the Code) would, but for transactions contemplated by this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise TaxAgreement. (b) The accounting firm engaged As soon as practicable following the delivery by the Company for general audit purposes (to the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason Buyer of the Audit Firm is unable to, or declines to, perform such calculationsParachute Payment Waivers, the Company shall engage provide adequate disclosure of, and submit to the stockholders of the Company for approval, in each case, in accordance with Section 280G, any payments and/or benefits that are subject to a Parachute Payment Waiver, such other accounting firm as that, if approved by the Audit Firm Company’s stockholders in accordance with Section 280G, such payments and benefits shall recommend not be deemed to be “parachute payments” under Section 280G. Prior to the Closing, the Company shall deliver to the Buyer evidence reasonably satisfactory to the Buyer (i) that a Company stockholder vote was solicited in writing conformance with Section 280G, and the requisite Company stockholder approval was obtained with respect to any payments and/or benefits that were subject to the Company to perform such calculations stockholder vote (the Audit Firm “Section 280G Approval”) or such other accounting firm(ii) that the Section 280G Approval was not obtained and, as applicablea consequence, being hereinafter referred pursuant to as the Parachute Payment Waiver, all payments or benefits that would constitute “parachute payments” if paid or provided shall not be paid or provided. The Company shall use its commercially reasonable efforts to obtain the Section 280G Approval in a manner which satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder (in either case, the “Accounting FirmSection 280G Vote Materials”). The Company shall bear all expenses with respect form of the Parachute Payment Waiver and any materials to be submitted to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make Company’s stockholders in connection with the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election 280G Approval shall be subject to the Company’s review and approval if made on or after the date on by Buyer, which the event that triggers the payment occurs and to the extent that such election does approval shall not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationunreasonably withheld.

Appears in 1 contract

Samples: Stock Purchase Agreement (On Assignment Inc)

Section 280G. (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a19(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 1819; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 19 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a19(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 1 contract

Samples: Employment Agreement (Americas Carmart Inc)

Section 280G. The Company shall request that each Person (aeach, a “Disqualified Individual”) In the event that the total amount of payments to whom any payment or benefit is required or proposed to be received made in connection with the transactions contemplated by this Agreement that could constitute “parachute payments” under Section 280G(b)(2) of the Code (“Section 280G Payments”) execute a written agreement waiving such Disqualified Individual’s right to receive some or all of such payment or benefit (the “Waived Benefits”), to the extent necessary so that all remaining payments and benefits applicable to such Disqualified Individual shall not be deemed a parachute payment, and accepting in substitution for the Waived Benefits the right to receive the Waived Benefits only if approved by the Associatestockholders of the Company in a manner that complies with Section 280G(b)(5)(B) of the Code. In connection with the foregoing, Parent shall provide the Company with all information reasonably necessary to allow the Company to determine whether any payments made or to be made or benefits granted or to be granted pursuant to this Agreement any employment agreement or otherwiseother agreement, that are contingent upon a change in ownership arrangement or control contract entered into or negotiated by Parent or its Affiliates (“Parent Payments”), together with all Section 280G Payments, could reasonably be considered to be “parachute payments” within the meaning of Section 280G of the Code280G(b)(2) would, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code at least twenty (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced 20) Business Days prior to the maximum amount that will cause the total amounts of the payments not to be subject Closing Date (and shall further provide any such updated information as is reasonably necessary prior to the Excise Tax, but only if Closing Date). Prior to the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculationsClosing, the Company shall engage submit the Waived Benefits of each Disqualified Individual who has executed a waiver in accordance with this Section 5.05 for approval of the Company’s stockholders and such other accounting firm as Disqualified Individual’s right to receive the Audit Firm Waived Benefits shall recommend be conditioned upon receipt of the requisite approval by the Company’s stockholders in writing a manner that complies with Section 280G(b)(5)(B) of the Code. Notwithstanding anything to the Company contrary in this Section 5.05 or otherwise in this Agreement, to perform the extent Parent has provided materially inaccurate information, or the Parent’s omission of information has resulted in materially inaccurate information, with respect to any Parent Payments, there shall be no breach of the covenant contained herein to the extent caused by such calculations (the Audit Firm materially inaccurate or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)omitted information. The Company shall bear all expenses provide Parent and its counsel with respect to a copy of the determinations waiver agreement and the disclosure statement contemplated by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations5.05 at least three Business Days prior to delivery to each Disqualified Individual and the stockholders of the Company of such waiver agreement and disclosure statement, together with detailed supporting documentationrespectively, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change shall consider in Control is triggered (if requested at that time by Associate or the Company) or such other time as good faith any changes reasonably requested by the Associate Parent or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationits counsel.

Appears in 1 contract

Samples: Merger Agreement (Porch Group, Inc.)

Section 280G. (a) In The Company and each of its Subsidiaries shall use reasonable best efforts to obtain, prior to the event that initiation of the total amount of payments equityholder approval procedure described in Section 7.19(c), from each Person to whom any payment or benefit is required or proposed to be received made or retained that could constitute “parachute payments” under Section 280G(b)(2) of the Code and Treasury Regulations promulgated thereunder (“Section 280G Payments”), a written agreement waiving such Person’s right to receive some or all of such payment or benefit (the “Waived Benefits”), to the extent necessary so that all remaining payments and benefits applicable to such Person shall not be deemed a parachute payment, and accepting in substitution for the Waived Benefits the right to receive the Waived Benefits only if approved by the Associateequityholders of the Company and its Subsidiaries, as applicable, in a manner that complies with Section 280G(b)(5)(B) of the Code and the Treasury Regulations issued thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations. (b) In connection with the foregoing, Buyer (i) shall reasonably cooperate with the Company to allow the Company and each of its Subsidiaries to determine whether any payments made or to be made or benefits granted or to be granted pursuant to this Agreement any employment agreement or otherwiseother agreement, that are contingent upon a change in ownership arrangement or control contract entered into or negotiated by Buyer or any of its respective Affiliates prior to or at the Closing (“Buyer Payments”), together with all Section 280G Payments, could reasonably be considered to be “parachute payments” within the meaning of Section 280G of the Code280G(b)(2) would, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code and (ii) shall provide the “Excise Tax”), then Company with information reasonably necessary to make such determination and prepare the amount required disclosure within a reasonable period of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced time prior to the maximum amount that will cause Company obtaining the total amounts of waivers and soliciting the payments not to be subject vote as set forth in Section 7.19(a). To the extent Buyer provides incorrect or incomplete information related to the Excise TaxBuyer Payments that directly results in the Company making an incorrect determination that a Person is not entitled to Section 280G Payments and accordingly does not seek a waiver from any such Person, but only if the amount such failure to seek a waiver shall not by itself be deemed a breach of such payments, after such reduction and after payment this Section 7.20. The Company shall provide drafts of all applicable taxes on the reduced amountdisclosure documents, is equal waivers, “parachute payment” calculations and other relevant documents to Buyer for review a reasonable period of time prior to obtaining such waivers or greater than the amount of soliciting such payments the Associate would otherwise be entitled to retain without vote and will implement any reasonable comments provided by Buyer for incorporation into such reduction after the payment of all applicable taxes, including the Excise Taxwaivers and documents. (bc) The accounting firm engaged by Prior to the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculationsClosing, the Company and each of its Subsidiaries shall engage such other accounting firm as seek to obtain the Audit Firm shall recommend in writing to approval of equityholders of the Company to perform such calculations (the Audit Firm or such other accounting firmand its Subsidiaries, as applicable, being hereinafter referred in a manner that complies with the terms of Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations, of the right of each Person described in Section 7.19(a) to receive or retain, as applicable, such Person’s Waived Benefits; provided, that, so long as the “Accounting Firm”). The Company shall bear all expenses and its Subsidiaries have complied with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under requirements set forth in Section 7.20(a) and this Section 18 7.20(c), in no event shall provide its calculations, together with detailed supporting documentation, this Section 7.20 be construed to the Associate and require the Company within fifteen (15) calendar days after the date on which the Associate’s right or any of its Subsidiaries to a payment contingent on a Change in Control is triggered (if requested at compel any Person to waive any existing rights under any contract or agreement that time by Associate or such Person has with the Company) , such Subsidiary or such any other time as requested by the Associate or the Company. If the Accounting Firm determines that Person, and in no Excise Tax is payable with respect to such payments, it event shall furnish the Associate and the Company with an opinion reasonably acceptable or any of its Subsidiaries be deemed in breach of this Section 7.20 if any such Person refuses to Associate that no Excise Tax will be imposed with respect waive any such rights or if the equityholders fail to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationapprove any Waived Benefits.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Nesco Holdings, Inc.)

Section 280G. (a) In Anything in this agreement to the contrary notwithstanding, in the event it shall be determined that the total amount of payments to be received any payment or distribution by the Associate, Company to or for the benefit of you (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement agreement or otherwise, that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for determined without regard to any additional payments required under this Section 18(a), 2) (a “Company Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by you with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then you shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by you of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Company Payments. (b) For purposes of determining whether any of the Company Payments and Gross-Up Payments (collectively the “Total Payments”) will be subject to the Excise Tax and the amount of payments to be received by such Excise Tax, (i) the Associate pursuant to this Agreement or otherwise Total Payments shall be reduced to treated as “parachute payments” within the maximum amount that will cause the total amounts meaning of Section 280G(b)(2) of the payments not to Code, and all “parachute payments” in excess of the “base amount” (as defined under Code Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, but only unless and except to the extent that, in the opinion of the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by such accountants (the “Accountants”) such Total Payments (in whole or in part) either do not constitute “parachute payments,” represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the “base amount” or are otherwise not subject to the Excise Tax, and (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Gross-Up Payment, you shall be deemed to pay U.S. federal income taxes at the highest marginal rate of U.S. federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of your residence for the calendar year in which the Company Payment is to be made, net of the maximum reduction in U.S. federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax is later determined by the Accountant or the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. (d) The Gross-Up Payment or portion thereof provided for in subsection (c) above shall be paid not later than the thirtieth day following an event occurring which subjects you to the Excise Tax; provided, however, that if the amount of such paymentsGross-Up Payment or portion thereof cannot be finally determined on or before such day, after the Company shall pay to you on such reduction and after payment day an estimate, as determined in good faith by the Accountant, of all applicable taxes on the reduced amount, is equal to or greater than the minimum amount of such payments and shall pay the Associate would otherwise remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to subsection (c) hereof, as soon as the amount thereof can reasonably be entitled to retain without such reduction determined, but in no event later than the ninetieth day after the payment occurrence of all applicable taxes, including the event subjecting you to the Excise Tax. (be) The accounting firm engaged by If any controversy arises between you and the Company for general audit purposes Internal Revenue Service or any state or local taxing authority (the a Audit FirmTaxing Authority”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by treatment on any return of the Gross-Up Payment, or of any Company Payment, or with respect to any return which a Taxing Authority asserts should show an Excise Tax, including, without limitation, any audit, protest to an appeals authority of a Taxing Authority or litigation (“Controversy”), (i) the Company shall have the right to participate with you in the handling of such Accounting Firm required Controversy, (ii) the Company shall have the right, solely with respect to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentationa Controversy, to direct you to protest or contest any proposed adjustment or deficiency, initiate an appeals procedure within any Taxing Authority, commence any judicial proceeding, make any settlement agreement, or file a claim for refund of tax, and (iii) you shall not take any of such steps without the Associate prior written approval of the Company, which the Company shall not unreasonably withhold. If the Company so elects, you shall be represented in any Controversy by attorneys, accountants, and other advisors selected by the Company, and the Company within fifteen (15) calendar days after shall pay the date on which fees, costs and expenses of such attorneys, accountants, or advisors, and any tax liability you may incur as a result of such payment. You shall promptly notify the Associate’s right Company of any communication with a Taxing Authority, and you shall promptly furnish to the Company copies of any written correspondence, notices, or documents received from a Taxing Authority relating to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the CompanyControversy. If the Accounting Firm determines that no Excise Tax is payable You shall cooperate fully with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless handling of any Controversy by furnishing the Associate elects in writing a different order (Company any information or documentation relating to or bearing upon the Controversy; provided, however, that such election you shall not be subject obligated to furnish to the Company copies of any portion of your tax returns which do not bear upon, and are not affected by, the Controversy. (f) You shall pay over to the Company’s approval if made , with ten (10) days after receipt thereof, any refund you receive from any Taxing Authority of all or any portion of the Gross-Up Payment or Excise Tax, together with any interest you receive from such Taxing Authority on or after the date on which the event that triggers the payment occurs and such refund. For purposes of this Section 2, a reduction in your tax liability attributable to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order previous payment of the date on which Gross-Up Payment or the Excise Tax shall be deemed to be a refund. If you would have received a refund of all or any portion of the Gross-Up Payment or the Excise Tax, except that a Taxing Authority offset the amount of such cash payments would otherwise be made refund against other tax liabilities, interest, or penalties, you shall pay the amount of such offset over to the Company, together with the cash payments that amount of interest you would otherwise be made last being reduced first); cancellation have received from the Taxing Authority if such offset had been an actual refund, within ten (10) days after receipt of accelerated vesting notice from the Taxing Authority of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationoffset.

Appears in 1 contract

Samples: Letter Agreement (Monster Worldwide Inc)

Section 280G. (a) a. In the event that the total amount of payments to be received by the AssociateExecutive, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a21(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate Executive pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate Executive would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) b. The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)21. The Company shall bear all expenses with respect to the determinations by such Accounting Firm accounting firm required to be made hereunder. The Accounting Firm accounting firm engaged to make the determinations under this Section 18 21 shall provide its calculations, together with detailed supporting documentation, to the Associate Executive and the Company within fifteen (15) 15 calendar days after the date on which the AssociateExecutive’s right to a payment contingent on a Change change in Control control is triggered (if requested at that time by Associate Executive or the Company) or such other time as requested by the Associate Executive or the Company. If the Accounting Firm accounting firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate Executive and the Company with an opinion reasonably acceptable to Associate Executive that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm accounting firm made hereunder shall be final, binding, and conclusive upon Associate Executive and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a21(a), the reduction shall occur in the following order unless the Associate Executive elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the AssociateExecutive’s stock awards unless the Associate Executive elects in writing a different order for cancellation.

Appears in 1 contract

Samples: Executive Agreement (Envestnet, Inc.)

Section 280G. (a) In the event that the total amount 1.1 Notwithstanding any other provision of payments to be received by the Associate, pursuant to this Agreement or otherwiseany other plan, that are contingent upon arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to the Executive or for the Executive’s benefit pursuant to the terms of this Agreement or otherwise as a change result of a Change in ownership or control Control (”Covered Payments”) constitute “parachute payments” within the meaning of Code Section 280G of the Code) and would, but for this Section 18(a)16, be subject to the excise tax imposed by under Code Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise Covered Payments shall be reduced (but not below zero) to the maximum amount minimum extent necessary to ensure that will cause the total amounts no portion of the payments not to be Covered Payments is subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) 1.2 The Covered Payments shall be reduced in a manner that maximizes the Executive’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. 1.3 Any determination required under this Section 16 shall be made in writing in good faith by the accounting firm engaged that was the Company’s independent auditor immediately before the Change in Control (the ”Accountants”), which shall provide detailed supporting calculations to the Company and the Executive as requested by the Company for general audit purposes (or the “Audit Firm”) Executive. The Company and the Executive shall perform any calculations necessary provide the Accountants with such information and documents as the Accountants may reasonably request in connection with order to make a determination under this Section 18; provided that, if for any reason 16. For purposes of making the Audit Firm is unable to, or declines to, perform such calculationscalculations and determinations required by this Section 16, the Company Accountants may rely on reasonable, good faith assumptions and approximations concerning the application of Code Sections 280G and 4999. The Accountants’ good faith determinations shall engage such other accounting firm as the Audit Firm shall recommend in writing to be final and binding on the Company to perform such calculations (and the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)Executive. The Company shall bear be responsible for all fees and expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested incurred by the Associate or Accountants in connection with the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is calculations required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationthis Section.16.

Appears in 1 contract

Samples: Employment Agreement (Natural Gas Services Group Inc)

Section 280G. (a) In To the event extent that any payment or distribution to or for the total amount benefit of payments to be received by the Associate, Executive pursuant to the terms of this Agreement or otherwiseany other plan, that are contingent upon arrangement or agreement with the Company, any of its affiliated companies, any person whose actions result in a change in of ownership or effective control (within the meaning of covered by Section 280G 280G(b)(2) of the CodeCode or any person affiliated with the Company or such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Payments”) would, but for this Section 18(a), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code Code, then the Company shall reduce the payments to the amount that is (after taking into account federal, state, local and social security taxes at the maximum marginal rates, including any excise taxes imposed by Section 4999 of the Code) one dollar less than the amount of the Payments that would subject the Executive to the Excise Tax (the “Excise TaxSafe Harbor Cap)) if, then and only if, such reduction would result in Executive receiving a higher net after-tax amount. Unless Executive shall have given prior written notice specifying a different order to the Company to effectuate the Safe Harbor Cap, the Payments to be reduced hereunder will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when the Payment would have been made to Executive until the reduction specified herein is achieved. Executive’s right to specify the order of reduction of the Payments shall apply only to the extent that it does not directly or indirectly alter the time or method of payment of any amount that is deferred compensation subject to (and not exempt from) Section 409A. (b) All determinations required to be made under this Section 9, including whether and when the Safe Harbor Cap is required and the amount of payments the reduction of the Payments pursuant to the Safe Harbor Cap and the assumptions to be received utilized in arriving at such determination, shall be made by a public accounting firm or other nationally recognized consulting firm with expertise in Section 280G of the Code that is retained by the Associate pursuant Company as of the date immediately prior to this Agreement the Change in Control (the “Calculating Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or otherwise Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the “Determination”). In the event that the Calculating Firm is serving as accountant, auditor or consultant for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized public accounting or consulting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Calculating Firm hereunder). All fees and expenses of the Calculating Firm shall be reduced to borne solely by the maximum amount that will cause Company and the total amounts Company shall enter into any agreement requested by the Calculating Firm in connection with the performance of the payments not to services hereunder. The Determination by the Calculating Firm shall be subject binding upon the Company and Executive. The Company shall bear and pay directly all costs and expenses incurred in connection with any contests or disputes with the Internal Revenue Service relating to the Excise Tax, but only if and Executive shall cooperate, to the amount extent Executive’s reasonable out-of such paymentspocket expenses are reimbursed by the Company, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged with any reasonable requests by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, such contests or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationdisputes.

Appears in 1 contract

Samples: Compensation Protection Agreement (CDW Corp)

Section 280G. (a) In Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that the total amount of payments to be received any accrual, acceleration, payment, benefit or distribution by the Associate, Company or any of its affiliated companies to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, that are contingent upon ) (a change in ownership or control (“Payment”) would be an excess parachute payment within the meaning of section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) (such excess only, an “Excess Payment”), and provided that at such time the Company is readily tradeable on an established securities market, then Executive shall forfeit all Excess Payments if the after-tax value to Executive of the Payments, as reduced by such forfeiture, would be greater than the after-tax value to Executive of the Payments absent such forfeiture. The forfeiture of Excess Payments, if applicable, shall be applied to the severance described in Section 5(c) hereof, then to cancellation of accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant), then to cancellation of accelerated vesting of other equity awards (based on the reverse order of the date of grant), and then to any other Payments on a pro-rata basis. All determinations required to be made under this Section 5(d), including whether and when a Payment is subject to section 280G of the Code) would, but and the value of a Payment for this Section 18(a), be subject to the excise tax imposed by Section 4999 purposes of section 280G of the Code (Code, and the “Excise Tax”), then the amount of payments assumptions to be received by the Associate pursuant to this Agreement or otherwise utilized in arriving at such determination, shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The made by an accounting firm engaged with expertise in such matters designated by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect will direct the Accounting Firm to provide its determination and detailed supporting calculations both to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate Company and the Company Executive within fifteen (15) calendar business days after the date on which of the Associate’s right event giving rise to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) Payment or such other time as is requested by the Associate or the Company. If Any determination by the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and be binding upon the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such paymentsand Executive. Any good faith determinations All fees and expenses of the Accounting Firm made hereunder for services performed pursuant to this Section 5(d) shall be final, binding, and conclusive upon Associate and borne solely by the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 1 contract

Samples: Employment Agreement (Eterna Therapeutics Inc.)

Section 280G. (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon Company undergoes a change in ownership control prior to the time that it (or control any Affiliate that would be treated, together with the Company, as a single corporation under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and the regulations thereunder) has stock that is readily tradeable on an established securities market (within the meaning of the Section 280G of the Code of 1986 and the regulations thereunder), the Company agrees, upon the Executive’s request (the “Request”), to use its reasonable best efforts to seek the requisite approval by its shareholders of the payments proposed to be made to the Executive in connection with such change in control by taking all administrative steps necessary to prevent having the payments or any portion thereof characterized as “parachute payments” under Sections 280G and 4999 of the Code. The Company’s actions pursuant to this provision are not intended to bind, nor shall be construed as binding, the shareholders of the Company. In connection with the obtaining of such approval, if so requested, the Executive agrees to undertake any such waivers that may be required in order for the Company to validly seek the approval of its shareholders. Prior to making the Request, the Executive may seek, at the Company’s expense, input from the Company’s public accounting firm (the “Accounting Firm”) wouldregarding the Executive’s potential parachute payments. The Company shall cooperate with, and provide the necessary information to, the Executive and the Accounting Firm for purposes of determining the Executive’s potential parachute payments. (b) If the Executive does not request that the Company seek the shareholder approval described in subsection (a) above: (i) In the event it shall be determined that all, or any portion, of the payments or benefits provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive in connection with the Executive’s services for the Company or an Affiliate (the “Payments”), but determined for this Section 18(apurpose without regard to any required Gross-Up Payment (as defined below), will be subject to the excise tax imposed by Section 4999 of the Code or any comparable tax imposed by any replacement or successor provision of United States tax law, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Executive one or more additional cash payments (each such payment, a “Gross-Up Payment”) in such amounts so that the net cash amount remaining from such Gross-Up Payment after deduction or payment of (a) the Excise Tax imposed on the Gross-Up Payments and (b) all federal, state and local income and employment taxes imposed upon the Gross-Up Payments, shall equal fifty percent (50%) of the excise tax imposed by Section 4999 of the Code on the total Payments. The intent of the parties is that the Company shall be responsible for, and shall pay, 50% of the Excise Tax on any Payment and on any Gross-Up Payment and 50% of any income and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment, as well as bearing any loss of tax deduction caused by the Gross-Up Payment. For purposes of determining the amount of payments any Gross-Up Payment, the Executive shall be deemed to pay (a) federal income tax at the highest marginal rate in effect for the calendar year during which such Gross-Up Payment is to be received by made, (b) FICA taxes at the Associate pursuant highest rate applicable to this Agreement wages in excess of the Social Security taxable wage base in effect for such calendar year, and (c) state and local income taxes at the highest marginal rates in effect for such calendar year in the state and local municipality of the Executive's principal residence as of the date of termination of employment with the Company or otherwise shall be reduced to the maximum amount date that will cause any portion of the total amounts of the payments not to be Payments become subject to the Excise Tax, but only if net of the amount reduction in federal income tax attributable to the deduction of such payments, after such reduction state and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable local income taxes, including and taking into account any limitation on deductions or credits or comparable negative impact for purposes of federal income tax as a result of the Excise Taxtotal Payments made to the Executive during such calendar year. (bii) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the All determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 14, including whether and when a Gross-Up payment is required and the amount of the such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Accounting Firm which shall provide its calculations, together with detailed supporting documentation, calculations both to the Associate Company and the Company Executive within fifteen (15) calendar business days after of the date on which receipt of notice from the Associate’s right to Executive that there has been a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) Payment, or such other earlier time as is requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate All fees and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations expenses of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and borne solely by the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Any Gross-Up Payment, as determined pursuant to this Section 18(a)14, the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject paid by the Company to the CompanyExecutive within thirty (30) days of the receipt of the Accounting Firm’s approval if made on or after determination; provided that in no event shall any Gross-Up Payment be paid later than the date on end of the calendar year next following the calendar year in which the event that triggers Executive or the payment occurs and to Company remits the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of taxes for which the date on which such cash payments would otherwise be made with Gross-Up Payment is being paid. Any determination by the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting Accounting Firm shall be cancelled in binding on the reverse order of Company and the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationExecutive.

Appears in 1 contract

Samples: Employment Agreement (Osi Restaurant Partners, LLC)

Section 280G. Prior to the Closing, the Company shall seek to obtain from each “disqualified individual” (aas defined in Section 280G of the Code (together with the Treasury Regulations promulgated thereunder, “Section 280G”)) with respect to the Company who is entitled to receive payments and/or benefits that would constitute “parachute payments” (as defined in Section 280G) in connection with or otherwise related to the transactions contemplated by this Agreement, a waiver of a portion of any such parachute payments or benefits exceeding one dollar less than three times the disqualified individual’s “base amount” (as defined in Section 280G) (the waived payments and benefits shall be collectively referred to as the “Section 280G Waived Payments”); provided, that in no event will this Section 6.15 be construed to require the Company to compel any Person to waive any existing rights under any contract or agreement that such Person has with the Company or any of its Subsidiaries and in no event will the Company be deemed in breach of this Section 6.15 if any such Person refuses to waive any such rights after the Company has sought to obtain such waiver. Prior to the Closing Date, the Company shall submit for shareholder approval all Section 280G Waived Payments in accordance with the terms of Section 280G (the “Section 280G Vote”). In connection with the event that foregoing, Parent shall provide the total amount of Company with all information reasonably necessary to allow the Company to determine whether any payments made or to be received by the Associate, made or benefits granted or to be granted pursuant to this Agreement any employment agreement or otherwiseother agreement, that are contingent upon a change in ownership arrangement or control (contract entered into or negotiated by Parent together with all other payments and benefits, could reasonably be considered “parachute payments” within the meaning of Section 280G of the Codeat least five (5) would, but for this Section 18(a), be subject days prior to the excise tax imposed by Section 4999 Closing Date (and shall, upon request, further provide any such updated information as is reasonably necessary prior to the Closing Date). The determination of which payments or benefits may be deemed to constitute “parachute payments”, the Code (form of waiver described herein, the “Excise Tax”), then the amount of payments disclosure statement and any other materials to be received by the Associate pursuant to this Agreement or otherwise shall be reduced submitted to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary Company’s shareholders in connection with this the Section 18; provided that280G Vote, if for and the calculations related to Section 280G Waived Payments and any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing documentation related to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election foregoing shall be subject to advance review and comment by Parent, and the Company’s approval if Company shall consider and take into account in good faith any reasonable comments made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationby Parent.

Appears in 1 contract

Samples: Merger Agreement (Ribbon Communications Inc.)

Section 280G. (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a21(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 1821; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 21 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” (as defined in Section 280G(b)(2) of the Code) is required by Section 18(a21(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A409A of the Code): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 1 contract

Samples: Employment Agreement (Americas Carmart Inc)

Section 280G. To the extent that any individual who is a “disqualified individual” (aas defined in Section 280G(c) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for may receive any payment or benefit in connection with the transactions contemplated by this Agreement that individually or in the aggregate could be characterized as a “parachute payment” (as defined in Section 18(a), be subject to the excise tax imposed by Section 4999 280G(b)(2) of the Code (the “Excise Tax”Code), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced no later than three (3) calendar days prior to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculationsClosing, the Company shall engage obtain a written waiver from each such other accounting firm as the Audit Firm shall recommend in writing individual, pursuant to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right individual shall have waived his or her rights to a payment contingent on a Change in Control is triggered (if requested at some or all of such payments and benefits so that time by Associate or the Company) or all remaining such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect payments and benefits applicable to such payments, it individual shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting not constitute “parachute payments” is required by Section 18(a(such waived payments and benefits, the “Waived 280G Benefits”), provided, however that at least three (3) calendar days prior to such deadline, Buyer shall have provided to the reduction Company sufficient information regarding any payments or benefits offered by Buyer to such individual that could be so characterized as “parachute payments.” Promptly following the execution of such waivers, and in any event at least one (1) calendar day prior to the Closing, the Company shall occur solicit a vote of the Waived 280G Benefits from the stockholders of the Company in the following order unless manner provided under Section 280G(b)(5)(B) of the Associate elects Code and its associated Treasury Regulations. Prior to soliciting such waivers and vote, the Company shall provide a draft of such waivers and such stockholder vote solicitation materials (together with any calculations) to Buyer for Buyer’s review and comment, and the Company shall consider in writing a different order (provided, however, that good faith Buyer’s comments thereto submitted before such election shall waivers and vote are required to be subject provided to the Company’s approval if applicable Persons. To the extent that any of the Waived 280G Benefits are not approved by the stockholders of the Company as contemplated above, prior to the Closing, such Waived 280G Benefits shall not be made on or after the date on which the event that triggers the payment occurs and provided in any manner, except to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order Waived 280G Benefits constitute reasonable compensation for personal services to be rendered after the Closing. Prior to the Closing, the Company shall deliver to Buyer evidence that a vote of the date on which such cash payments would otherwise stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 6.7 and that either (A) the requisite number of votes was obtained with respect to the Waived 280G Benefits (the “280G Approval”), or (B) the 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits shall not be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationor provided.

Appears in 1 contract

Samples: Merger Agreement (Hc2 Holdings, Inc.)

Section 280G. (a) In the event it shall be determined that any payment or distribution to or for the total amount benefit of payments to be received by Employee under the Associate, pursuant to this 2010 Agreement or otherwise, that are contingent upon a change in ownership this Amended Agreement or control the acceleration thereof (within the meaning of Section 280G of the Code"Triggering Payment") would, but for this Section 18(a), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the "Excise Tax") (all such payments and benefits, including any cash severance payments payable pursuant to any other plan, arrangement or agreement, hereinafter referred to as the "Total Payments"), then then, after taking into account any reduction in the amount Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount extent necessary so that will cause the total amounts no portion of the payments not to be Total Payments is subject to the Excise Tax, Tax but only if (A) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Employee would be subject in respect of such payments, after such reduction unreduced Total Payments and after payment taking into account the phase out of all applicable taxes on the reduced amount, is equal itemized deductions and personal exemptions attributable to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”unreduced Total Payments). The Company shall bear all expenses with respect to the All determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 subsection (vi) shall be made in writing within ten (10) business days of the receipt of notice by Employee that there has been a Triggering Payment by the independent accounting firm then retained by the Company in the ordinary course of business (which firm shall provide its calculations, together with detailed supporting documentation, calculations to the Associate Company and Employee) and such determinations shall be final and binding on the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such paymentsEmployee. Any good faith determinations fees incurred as a result of the Accounting Firm made work performed by any independent accounting firm hereunder shall be final, binding, and conclusive upon Associate and paid by the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 1 contract

Samples: Employment Agreement (Campus Crest Communities, Inc.)

Section 280G. The Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment received hereunder, including, without limitation, any excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (a) In the event “Code”); provided, however, that the total amount of payments any payment or benefit received or to be received by the Associate, Executive in connection with a Change in Control or the termination of the Executive’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or otherwiseany other plan, arrangements or agreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”) shall be reduced to the extent necessary so that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a), no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code (but only if, by reason of such reduction, the “Excise Tax”), then net after-tax benefit received by the amount of payments to Executive shall exceed the net after-tax benefit that would be received by the Associate pursuant to Executive if no such reduction was made. For purposes of this Agreement or otherwise Section 2.3, “net after-tax benefit” shall be reduced to the maximum amount that will cause mean (i) the total amounts of all payments and the value of all benefits which the Executive receives or is then entitled to receive from the Company that would constitute “excess parachute payments” within the meaning of Section 280G of the payments not to be subject to the Excise TaxCode, but only if less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Executive (based on the rate in effect for such payments, after such reduction and after year as set forth in the Code as in effect at the time of the first payment of all applicable taxes on the reduced amountforegoing), is equal to or greater than less (iii) the amount of such excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Associate would otherwise Code. The foregoing determination shall be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The made by a nationally recognized accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The ) selected by the Company shall bear all expenses with respect and reasonably acceptable to the determinations by such Accounting Firm required to be made hereunderExecutive. The Accounting Firm engaged to make the determinations under this Section 18 shall provide submit its calculations, together with determination and detailed supporting documentation, calculations to both the Associate Executive and the Company within fifteen (15) calendar days after receipt of a notice from either the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate Company or the Company) or Executive that the Executive may receive payments which may be “parachute payments.” If the Accounting Firm determines that a reduction is required by this Section 2.3, the cash portion of the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such other time as requested by reduced amount to the Associate or the CompanyExecutive. If the Accounting Firm determines that no Excise Tax is payable with respect to such paymentsnone of the Total Payments, after taking into account any reduction required by this Section 2.3, constitutes a “parachute payment” within the meaning of Section 280G of the Code, it shall will, at the same time as it makes such determination, furnish the Associate Executive and the Company with an opinion that Executive has substantial authority not to report any excise tax under Section 4999 of the Code on his federal income tax return. The Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of the Executive or the Company, as the case may be, reasonably acceptable to Associate that no Excise Tax will be imposed requested by the Accounting Firm, and otherwise cooperate with respect to such paymentsthe Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 2.3 . Any good faith determinations The fees and expenses of the Accounting Firm made hereunder for its services in connection with the determinations and calculations contemplated by this Section 2.3 shall be final, binding, and conclusive upon Associate and borne by the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 1 contract

Samples: Severance Agreement (Reddy Ice Holdings Inc)

Section 280G. (a) In The Executive shall bear all expense of, and be solely responsible for, any Excise Tax; provided, however, in the event that the total amount Accounting Firm shall determine that receipt of all payments or distributions in the nature of compensation to be received by or for the Associatebenefit of the Executive, whether paid or payable pursuant to this Agreement or otherwiseotherwise (the “Payments”) would subject the Executive to tax under Section 4999 of the Code, the Accounting Firm shall determine whether the Payments shall be reduced (but not below zero) to meet the definition of Reduced Amount (as defined below). The Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that are contingent the Net After-Tax Receipt (as defined below) of unreduced aggregate Payments would be equal to or less than one-hundred ten percent (110%) of the Net After-Tax Receipt of the aggregate Payments if the Payments were reduced to the Reduced Amount. (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 8 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, or such later date on which there has been a Payment. The reduction of the Payments, if applicable, shall be made in the order that would provide the Executive with the largest amount of after-tax proceeds (with such order, to the extent permitted by Code Sections 280G and 409A designated by the Executive, or otherwise determined by the Accounting Firm). All fees and expenses of the Accounting Firm in implementing the provisions of this Section 8 shall be borne by the Company. To the extent requested by the Executive, the Company shall cooperate with the Executive in good faith in valuing services provided or to be provided by the Executive (including without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant) before, on or after the date of a change in ownership or control of the Corporation (within the meaning of Q&A-2(b) of Section 280G of the Code) would, but for this Section 18(a), 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 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 Section 280G of the Code in accordance with Q&A-5(a) of Section 280G 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 shall 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 (“Overpayment”) or that additional amounts which shall 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 (“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, the Executive shall pay any such Overpayment to the Company, without interest; provided, however, that no amount shall be payable by the Executive to the Company if and to the extent such payment would not either reduce the amount on which the Executive is subject to the excise tax imposed by under Section 1 and Section 4999 of the Code (or generate a refund of such taxes. In the “Excise Tax”)event that the Accounting Firm, then the amount of payments to be received by the Associate pursuant to this Agreement based upon controlling precedent or otherwise substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction paid promptly (and after payment of all applicable taxes on the reduced amount, is equal to or greater in no event later than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. sixty (b60) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after following the date on which the Associate’s right to a payment contingent on a Change in Control Underpayment is triggered (if requested at that time by Associate or the Companydetermined) or such other time as requested by the Associate Company to or for the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations benefit of the Accounting Firm made hereunder shall be finalExecutive, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by without interest. (d) For purposes of this Section 18(a)8, the reduction shall occur in following terms have the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.meanings set forth below:

Appears in 1 contract

Samples: Change in Control Agreement (Darden Restaurants Inc)

Section 280G. (a) In If any of the event that the total amount of payments or benefits received or to be received by the AssociateExecutive (including, without limitation, any payment or benefits received in connection with a Change in Control or the Executive’s termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise, that are contingent upon a change in ownership or control ) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code) Code and would, but for this Section 18(a)14, be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then prior to making the amount of payments to be received by the Associate pursuant to this Agreement or otherwise 280G Payments, a calculation shall be reduced made comparing (i) the Net Benefit (as defined below) to the maximum amount that will cause the total amounts Executive of the payments not 280G Payments after payment of the Excise Tax to be (ii) the Net Benefit to the Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax, but only . Only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, calculated under (i) above is equal to or greater less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of such payments the Associate would otherwise be entitled 280G Payments is subject to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged . “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 14 shall be made in a manner determined by the Company for general audit purposes that is consistent with the requirements of Section 409A of the Code (“Section 409A”). All calculations and determinations under this Section 14 shall be made by an independent accounting firm or independent tax counsel appointed by the Company (the “Audit FirmTax Counsel”) whose determinations shall perform any be conclusive and binding on the Company and the Executive for all purposes. For purposes of making the calculations necessary in connection with and determinations required by this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations14, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and the Executive shall engage furnish the Tax Counsel with such other accounting firm information and documents as the Audit Firm shall recommend Tax Counsel may reasonably request in writing order to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)make its determinations under this Section 14. The Company shall bear all expenses costs the Tax Counsel may reasonably incur in connection with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationservices.

Appears in 1 contract

Samples: Change in Control Executive Severance Agreement (PHX Minerals Inc.)

Section 280G. Prior to the Closing Date, Seller shall seek to obtain a written waiver (aa “280G Waiver”) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control from each “disqualified individual” (within the meaning of Section 280G(c) of the Code) of his or her right to any and all payments or other benefits that could reasonably be expected to be deemed “parachute payments” under Section 280G(b) of the Code (“Parachute Payments”) if such payments are not approved by the applicable Acquired Company Entity’s stockholders in a manner that satisfies the requirements of Section 280G(b)(5)(B) of the Code and any regulations thereunder, including any Buyer Arrangements (as defined below) to the extent provided to Seller in a timely manner in accordance with the requirements of this Section 5.12. At least one (1) day prior to the Closing Date, Seller shall solicit stockholder approval of the Parachute Payments for which a 280G Waiver has been obtained in a manner that satisfies the exemptions under Section 280G(b)(5)(A)(ii) of the Code and any regulations issued thereunder, including providing adequate disclosure to all stockholders entitled to vote. Prior to the Closing Date, Seller shall deliver to the Buyer Parties evidence that a vote of the applicable stockholders was solicited in accordance with the foregoing provisions and that either (i) the requisite number of stockholder votes was obtained or (ii) the requisite number of stockholder votes was not obtained and no waived Parachute Payments shall be made (to the extent the 280G Waivers were executed). Notwithstanding the foregoing, to the extent that any contract, agreement or arrangement is entered into by and between the Buyer Parties, any of the Acquired Company Entities or any of their respective Affiliates and a disqualified individual before the Closing Date in connection with the transactions contemplated hereby that together with any other payments or benefits which may be paid or granted to such disqualified individual in connection with the transactions contemplated hereby could reasonably be expected to constitute a Parachute Payment (the “Buyer Arrangements”), then the Buyer Parties shall provide a copy of such contract, agreement or arrangement to Seller a reasonable period of time before the Closing Date and shall cooperate with Seller in order to calculate or determine the value (for the purposes of Section 280G of the Code) wouldof any payments or benefits granted or contemplated therein which may be paid or granted in connection with the transactions contemplated hereby that could constitute a Parachute Payment. Seller shall provide the Buyer Parties, but for this Section 18(a)a reasonable period of time prior to seeking the 280G Waivers, be subject (i) drafts of and a reasonable opportunity to sufficiently review any waivers, disclosure documents and other relevant documents relating to the excise tax imposed 280G Waivers and vote prepared by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary Seller in connection with this Section 18; provided that, if for 5.12 and (ii) reasonable documentation regarding the determination of the Parachute Payments. Seller shall incorporate any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be reasonable comments made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or Buyer Parties prior to seeking the Company. If 280G Waivers and soliciting the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationvote.

Appears in 1 contract

Samples: Purchase Agreement (CLARIVATE PLC)

Section 280G. (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon If any Person who is a change in ownership or control “disqualified individual” (within the meaning of Section 280G of the CodeCode and the Department of Treasury regulations promulgated thereunder) would, but for this Section 18(a), be subject with respect to the excise tax imposed Company or any of its Subsidiaries may receive any payment(s) or benefit(s) that could constitute parachute payments under Section 280G of the Code in connection with the transactions contemplated by this Agreement, then: (a) the Company shall use reasonable commercial efforts to obtain and deliver to Buyer a Parachute Payment Waiver from each such “disqualified individual”; and (b) as soon as practicable following the delivery of the Parachute Payment Waivers (if any) to Buyer, the Company shall prepare and distribute to the Securityholders that are required to receive a disclosure statement under Section 4999 280G of the Code, a disclosure statement describing all potential parachute payments and benefits that may be received by such disqualified individual(s) and shall submit such payments to such Securityholders for approval, in each case, in accordance with the requirements of Section 280G(b)(5)(B) of the Code and the Department of Treasury regulations promulgated thereunder, such that, if approved by the requisite majority of the Securityholders that have the right to vote on such payments under Section 280G of the Code, such payments and benefits shall not be deemed to be “parachute payments” under Section 280G of the Code (the foregoing actions, a Excise Tax280G Vote”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced . Prior to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided thatClosing, if for any reason the Audit Firm a 280G Vote is unable to, or declines to, perform such calculationsrequired, the Company shall engage such other accounting firm as deliver to Buyer evidence reasonably satisfactory to Buyer, (i) that a 280G Vote was solicited in conformance with Section 280G of the Audit Firm shall recommend in writing Code, and the requisite shareholder approval was obtained with respect to any payments and/or benefits that were subject to the Company to perform such calculations shareholder vote (the Audit Firm “Section 280G Approval”) or such other accounting firm(ii) that the Section 280G Approval was not obtained and as a consequence, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect pursuant to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested Parachute Payment Waiver executed by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to applicable disqualified individual, such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” shall not be made or provided. For the avoidance of doubt, this Section 5.12 will not be deemed breached by reason of (x) the refusal of a disqualified individual to execute a waiver as discussed herein or (y) any Buyer Arrangement, unless such Buyer Arrangement (or the material terms thereof, including values) is required by Section 18(a)provided to the Company at least 10 Business Days prior to the Closing. The form of the Parachute Payment Waiver, the reduction shall occur disclosure statement, any other materials to be submitted to the Securityholders in connection with the following order unless Section 280G Approval and the Associate elects in writing a different order calculations related to the foregoing (provided, however, that such election the “Section 280G Soliciting Materials”) shall be subject to the Company’s advance review and approval if made on or after the date on by Buyer, which the event that triggers the payment occurs and to the extent that such election does approval shall not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationunreasonably withheld.

Appears in 1 contract

Samples: Merger Agreement (Avery Dennison Corp)

Section 280G. (a) In Notwithstanding anything in this Agreement to the contrary, in the event it will be determined that the total amount of payments to be received any payment or distribution by the Associate, Equity Group to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, that payments or distributions are contingent upon a change in ownership or control (within the meaning of Section 280G of the Codehereinafter referred to as “Payments”) would, but for this Section 18(a)if paid, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced then, prior to the maximum amount that making of any Payments to Executive, a calculation will cause be made comparing (i) the total amounts net after-tax benefit to Executive of the payments not Payments after payment by Executive of the Excise Tax, to be (ii) the net after-tax benefit to Executive if the Payments had been limited to the extent necessary to avoid being subject to the Excise Tax, but only if . If the amount calculated under clause (i) of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, immediately preceding sentence is equal to or greater less than the amount of such payments calculated under clause (ii) thereof, then the Associate would otherwise Payments will be entitled limited to retain without such reduction after the payment of all applicable taxes, including extent necessary to avoid triggering the Excise TaxTax (the “Reduced Amount”). (b) The reduction of the Payments, if applicable, will be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the Change of Control, as determined by the accounting firm engaged by that was the Company for general audit purposes Bank’s independent auditor immediately before the Change of Control (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Determination Firm”). The Company shall bear all expenses For purposes of this Section 7, present value will be determined in accordance with respect Section 280G(d)(4) of the Code. For purposes of this Section 7, the “Parachute Value” of a Payment means the present value as of the date of the Change of Control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (c) All determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall 7, including whether an Excise Tax would otherwise be imposed, whether the Payments will be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, will be made by the Determination Firm, which will provide its calculations, together with detailed supporting documentation, calculations both to the Associate Bank and the Company Executive within fifteen (15) calendar business days after the date on which the Associate’s right receipt of notice from Executive that a Payment is due to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) be made, or such other earlier time as is requested by the Associate Bank. All fees and expenses of the Determination Firm will be borne solely by the Bank. Any determination by the Determination Firm will be binding upon the Bank and Executive. (d) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that amounts will have been paid or distributed by the CompanyEquity Group to or for the benefit of Executive that should not have been so paid or distributed (an “Overpayment”) or that additional amounts that will have not been paid or distributed by the Equity Group to or for the benefit of Executive could have been so paid or distributed (an “Underpayment”). If In the Accounting event that the Determination Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Equity Group or Executive that the Determination Firm believes has a high probability of success determines that no Excise Tax is payable with respect an Overpayment has been made, any such Overpayment paid or distributed by the Equity Group to such payments, it shall furnish or for the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax benefit of Executive will be imposed with respect repaid by Executive to such payments. Any good faith determinations the appropriate member of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and Equity Group together with interest at the Company. If a reduction applicable federal rate provided for in payments or benefits constituting “parachute payments” is required by Section 18(a), 7872(f)(2)(A) of the reduction shall occur in the following order unless the Associate elects in writing a different order (Code; provided, however, that no such election shall repayment will be required if and to the extent such deemed repayment would not either reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the CompanyCode or generate a refund of such taxes. In the event that the Determination Firm, based upon controlling precedent or substantial (initials) ________ - 10 - 00032306.DOCX authority, determines that an Underpayment has occurred, any such Underpayment will be promptly paid by the Equity Group to or for the benefit of Executive, together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. (e) To the extent requested by Executive, the Bank will cooperate with the Executive in good faith in valuing, and the Determination Firm will take into account the value of, services provided or to be provided by Executive (including Executive’s approval if made agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant) before, on or after the date on which of a change in ownership or control of Parent or the event that triggers Bank (within the payment occurs and to the extent that such election does not violate Code Section 409A): reduction meaning of cash payments (in reverse order Q&A-2(b) of the date on which such cash payments would otherwise be made with final regulations under Section 280G of the cash payments that would otherwise be made last being reduced firstCode); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall that payments in respect of such services may be cancelled in considered reasonable compensation within the reverse order meaning of Q&A-9 and Q&A-40 to Q&A-44 of the grant date final regulations under Section 280G of the Associate’s stock awards unless Code and/or exempt from the Associate elects definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in writing a different order for cancellationaccordance with Q&A-5(a) of the final regulations under Section 280G of the Code.

Appears in 1 contract

Samples: Employment Agreement (Equity Bancshares Inc)

Section 280G. (a) In the event If it is determined that the total amount amounts payable to you under this Agreement, when considered together with any other amounts payable to you as a result of payments to be received by a Change of Control (collectively, the Associate, pursuant to this Agreement or otherwise, that are contingent upon “Payment”) would (i) constitute a change in ownership or control (“parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) would, but for this Section 18(a)sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of 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 your receipt, on an after-tax basis, of the greater amount of payments to be received by the Associate pursuant to this Agreement Payment notwithstanding that all or otherwise shall be reduced to the maximum amount that will cause the total amounts some portion of the payments not to Payment may be 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, but only if reduction shall occur in the amount following order: reduction of cash payments; reduction of accelerated vesting of stock options; reduction of employee benefits. In the event that acceleration of vesting of stock option compensation is to be reduced, such payments, after such reduction and after payment acceleration of all applicable taxes on vesting shall be cancelled in the reduced amount, is equal to or greater than reverse order of the amount date of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) grant. The accounting firm engaged by the Company for general audit purposes (as of the “Audit Firm”) day prior to the effective date of the Change of Control shall perform any calculations necessary in connection with this Section 18; provided thatthe foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, if for any reason entity or group effecting the Audit Firm is unable to, or declines to, perform such calculationsChange of Control, the Company shall engage such other appoint a nationally recognized accounting firm as to make the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such Accounting Firm accounting firm required to be made hereunder. The Accounting Firm accounting firm engaged to make the determinations under this Section 18 hereunder shall provide its calculations, together with detailed supporting documentation, to the Associate you and the Company within fifteen (15) calendar days after the date on which the Associate’s your right to a payment contingent on a Change in Control Payment is triggered (if requested at that time by Associate you or the Company) or such other time as requested by the Associate you or the Company. If the Accounting Firm accounting firm determines that no Excise Tax is payable with respect to such paymentsa Payment, either before or after the application of the Reduced Amount, it shall furnish the Associate you and the Company with an opinion reasonably acceptable to Associate you that no Excise Tax will be imposed with respect to such paymentsPayment. Any good faith determinations of the Accounting Firm accounting firm made hereunder shall be final, binding, binding and conclusive upon Associate you and the Company, except as set forth below. If, notwithstanding any reduction described in this Section 7, the IRS determines that you are liable for the Excise Tax as a result of the receipt of the payment of benefits as described above, then you shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that you challenge the final IRS determination, a final judicial determination, a portion of the payment equal to the “Repayment Amount.” The Repayment Amount with respect to the payment of benefits shall be the smallest such amount, if any, as shall be required to be paid to the Company so that your net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in your net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, you shall pay the Excise Tax. Notwithstanding any either provision of this Section 7, if (i) there is a reduction in payments or the payment of benefits constituting “parachute payments” is required by Section 18(aas described in this section, (ii) the IRS later determines that you are liable for the Excise Tax, the payment of which would result in the maximization of your net after-tax proceeds (calculated as if your benefits had not previously been reduced), and (iii) you pay the reduction Excise Tax, then the Company shall occur in pay to you those benefits which were reduced pursuant to this section contemporaneously or as soon as administratively possible after you pays the following order unless the Associate elects in writing a different order (provided, however, Excise Tax so that such election shall be subject your net after-tax proceeds with respect to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards benefits is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationmaximized.

Appears in 1 contract

Samples: Compensation Agreement (Entropic Communications Inc)

Section 280G. (a) In If it is determined that any payment or distribution of any type to or for the event that the total amount benefit of payments to be received Executive by the AssociateCompany, any of its affiliates, 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 Code Section 280G and the regulations thereunder) or any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, that are contingent upon a change in ownership including, without limitation, any equity plan or control award agreement (within the meaning of Section 280G of the Code) would, but for this Section 18(a“Payments”), would be subject to the excise tax imposed by Section section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The determination of whether the Payments are subject to an Excise Tax and, if so, the amount of payments to be received paid by the Associate Company to Executive and the time of payment pursuant to this Agreement or otherwise Section 26 shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged made by the Company for general audit purposes an independent auditor (the “Audit FirmAuditor”) jointly selected by the parties, which shall perform any provide detailed supporting calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing both to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company Executive within fifteen (15) calendar days after of the receipt of notice from Executive that there has been a Payment. Unless Executive agrees otherwise in writing, the Auditor shall be a nationally recognized United States public accounting firm that has not, during the two (2) years preceding the date of its selection, acted in any way on which behalf of the Associate’s right Company or any of its affiliates. If the parties cannot agree on the firm to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or serve as the Company) or such other time Auditor, then the parties shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as requested the Auditor. Any Gross-Up Payment, as determined pursuant to this Section 26, shall be paid by the Associate or Company to Executive within five (5) days of the receipt of the Auditor’s determination. All fees and expenses of the Auditor shall be borne solely by the Company. If If, at a later date, it is determined (pursuant to final regulations or published rulings of the Accounting Firm determines Internal Revenue Service, final judgment of a court of competent jurisdiction, or otherwise) that no the amount of Excise Tax payable to Executive is payable greater than the amount initially so determined, then the Company (or its successor) shall pay to Executive a Gross-Up Payment with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to and any interest, fines and penalties resulting from such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationunderpayment.

Appears in 1 contract

Samples: Employment Agreement (Novatel Wireless Inc)

Section 280G. (a) In the event that the total amount of payments to be received by the AssociateExecutive, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a22(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate Executive pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate Executive would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)22. The Company shall bear all expenses with respect to the determinations by such Accounting Firm accounting firm required to be made hereunder. The Accounting Firm accounting firm engaged to make the determinations under this Section 18 22 shall provide its calculations, together with detailed supporting documentation, to the Associate Executive and the Company within fifteen (15) 15 calendar days after the date on which the AssociateExecutive’s right to a payment contingent on a Change change in Control control is triggered (if requested at that time by Associate Executive or the Company) or such other time as requested by the Associate Executive or the Company. If the Accounting Firm accounting firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate Executive and the Company with an opinion reasonably acceptable to Associate Executive that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm accounting firm made hereunder shall be final, binding, and conclusive upon Associate Executive and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a22(a), the reduction shall occur in the following order unless the Associate Executive elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the AssociateExecutive’s stock awards unless the Associate Executive elects in writing a different order for cancellation.

Appears in 1 contract

Samples: Executive Agreement (Envestnet, Inc.)

Section 280G. Notwithstanding anything to the contrary contained in this Agreement, (a) In If it shall be determined that any benefit provided to the event that Participant or payment or distribution by or for the total amount account of payments the Company to be received by or for the Associatebenefit of the Participant, whether provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, that are contingent upon otherwise (a change in ownership or control (within the meaning of Section 280G of the Code“Payment”) would, but for this Section 18(a), would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments Payments that would be provided, paid or payable or distributed or distributable to be received by the Associate Participant pursuant to the terms of this Agreement or otherwise shall be reduced prior to payment thereof so that the maximum amount Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount; provided that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise shall only be entitled to retain without made if such reduction after results in a more favorable after-tax position for the payment of all applicable taxes, including the Excise TaxExecutive. (b) The Subject to the provisions of Section 23(c), all determinations required to be made under this Section 23, including the assumptions to be utilized in arriving at such determination, shall be made by the Company’s independent, certified public accounting firm engaged or such other certified public accounting firm as may be designated by the Company prior to the change in ownership or effective control (as defined for general audit purposes of Section 280G of the Code) of the Company (the a Audit Firm280G Change in Control”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company ) which shall bear all expenses with respect provide detailed supporting calculations both to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate Company and the Company Participant within fifteen (15) calendar business days after of the date on which receipt of notice from the Associate’s right Participant that there is scheduled to be a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) Payment, or such other earlier time as is requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such paymentsserving as accountant or auditor for the individual, it entity or group effecting a 280G Change in Control, the Participant shall furnish the Associate and the Company with an opinion appoint another nationally recognized accounting firm which is reasonably acceptable to Associate that no Excise Tax will the Company to make the determinations required hereunder (which accounting firm shall then be imposed with respect referred to such paymentsas the Accounting Firm hereunder). Any good faith determinations All fees and expenses of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and borne solely by the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction . (c) The following terms shall occur in have the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code meanings for purposes of this Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.23:

Appears in 1 contract

Samples: Restricted Stock Agreement (Citadel Broadcasting Corp)

Section 280G. Prior to the Closing, the Company shall request from each person (aeach, a “Disqualified Individual”) In the event that the total amount of payments to whom any payment or benefit is required or proposed to be received made in connection with the transactions contemplated by this Agreement that could constitute “parachute payments” under Section 280G(b)(2) of the Code (“Section 280G Payments”) execute a waiver agreement providing that such Disqualified Individual has waived his or her right to receive some or all of such payment or benefit (the “Waived Benefits”), to the extent necessary so that all remaining payments and benefits applicable to such Disqualified Individual shall not be deemed a parachute payment, and accepting in substitution for the Waived Benefits the right to receive the Waived Benefits if and only if approved by the Associatestockholders of the Company in a manner that complies with Section 280G(b)(5)(B) of the Code. In connection with the foregoing, DFB Healthcare shall provide the Company with all information reasonably necessary to allow the Company to determine whether any payments made or to be made or benefits granted or to be granted pursuant to this Agreement any Contract entered into or otherwisenegotiated by DFB Healthcare or its affiliates (“DFB Healthcare Payments”), that are contingent upon a change in ownership or control (together with all Section 280G Payments, could reasonably be considered to be “parachute payments” within the meaning of Section 280G of the Code280G(b)(2) would, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code at least fifteen (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced 15) Business Days prior to the maximum amount that will cause the total amounts of the payments not to be subject Closing Date (and shall further provide any such updated information as is reasonably necessary prior to the Excise Tax, but only if Closing Date). Prior to the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculationsClosing, the Company shall engage submit the Waived Benefits of each Disqualified Individual who has executed a waiver in accordance with this Section 7.06 for approval of the Company’s stockholders and such Disqualified Individual’s right to receive the Waived Benefits shall be conditioned upon receipt of the requisite approval by the Company’s stockholders in a manner that complies with Section 280G(b)(5)(B) of the Code; provided, that in no event shall this Section 7.06 be construed to require the Company (or any of its affiliates) to compel any Disqualified Individual to waive any existing rights under any Contract or agreement that such Disqualified Individual has with any of the Company or any Company Subsidiary or any other accounting firm as person and in no event shall the Audit Firm shall recommend Company (or any of its affiliates) be deemed in writing breach of this Section 7.06 if any such Disqualified Individual refuses to waive any such rights or it the stockholders fail to approve any Waived Benefits. Notwithstanding anything to the Company contrary in this Section 7.06 or otherwise in this Agreement, to perform the extent DFB Healthcare has provided inaccurate information, or DFB Healthcare’s omission of information has resulted in inaccurate information, with respect to any DFB Healthcare Payments, there shall be no breach of the covenant contained herein to the extent caused by such calculations (the Audit Firm inaccurate or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)omitted information. The Company shall bear all expenses provide DFB Healthcare and its counsel with a copy of the Section 280G calculations, as well as any waiver agreement, the disclosure statement and the stockholder consent contemplated by this Section 7.06 within a reasonable time prior to delivery to each Disqualified Individual and the stockholders of the Company of such waiver agreement, disclosure statement and stockholder consent, respectively, and the Company shall consider in good faith any changes reasonably requested by DFB Healthcare or its counsel. Prior to the Closing Date, the Company shall, to the extent that the Company receives waivers from any Disqualified Individual, deliver to DFB Healthcare and its counsel evidence that a vote of the stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 7.06 with respect to the determinations by Waived Benefits pursuant to such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make waiver and that either (a) the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to requisite number of votes of the Associate and stockholders of the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable was obtained with respect to such paymentsWaived Benefits (the “280G Approval”) or (b) the 280G Approval was not obtained, it and, as a consequence, such Waived Benefits shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationor provided.

Appears in 1 contract

Samples: Merger Agreement (DFB Healthcare Acquisitions Corp.)

Section 280G. (a) In If any payment or benefit the event that Executive would receive under this Agreement, when combined with any other payment or benefit the total amount of payments to be received by the AssociateExecutive receives (“Payment”), pursuant to this Agreement or otherwise, that are contingent upon would (A) constitute a change in ownership or control (“parachute payment” within the meaning of Section 280G of the Code, and (B) would, but for this Section 18(a)sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either (1) the full amount of such Payment or (2) such lesser amount (with cash payments to be received by being reduced before stock option compensation) as would result in no portion of the Associate pursuant to this Agreement or otherwise shall be reduced Payment being subject to the maximum amount that will cause the total amounts Excise Tax, whichever of the payments not to foregoing amounts, taking into account the applicable federal, state and local employment taxes, income taxes, and the Excise Tax, results in Executive’s 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. For these purposes, but only if the amount of federal and state income taxes payable with respect to the foregoing shall be calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Executive (based upon the rate in effect for such payments, after such reduction and after payment year as set forth in the Code at the time of all applicable taxes on termination of the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise TaxExecutive’s employment). (b) The All determinations required to be made under this Section 4.11(b), including whether and to what extent the Payments shall be reduced and the assumptions to be utilized in arriving at such determination, shall be made by the nationally recognized certified public accounting firm engaged used by the Company for general audit purposes (immediately prior to the “Audit Firm”) shall perform any calculations necessary effective date of the Change in connection with this Section 18; provided thatControl or, if for any reason the Audit Firm is unable tosuch firm declines to serve, or declines to, perform such calculations, the Company shall engage such other nationally recognized certified public accounting firm as the Audit Firm shall recommend in writing to may be designated by the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, calculations both to the Associate Executive and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as is requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate All fees and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations expenses of the Accounting Firm made hereunder shall be final, binding, and conclusive borne solely by the Company. Any determination by the Accounting Firm shall be binding upon Associate Executive and the Company. If a reduction in payments or benefits constituting “parachute payments” is For purposes of making the calculations required by this Section 18(a4.11(b), the reduction 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. THIRD: The following amendments to the Agreement are adopted in respect of Code Section 409A: (a) A sentence shall occur be added at the end of Section 2.1(b), which reads: “In no event will Executive’s annual bonus be paid later than March 15th of the calendar year following the calendar year to which such annual bonus relates.” (b) Section 4.7 shall be revised in its entirety to read: “As a condition to receiving any payments set forth in Section 4.2 through 4.5, the Executive (or his executor) shall be required to execute and not revoke a waiver and release of claims in favor of the Company and its Affiliates, in the form attached hereto as EXHIBIT B, no later than the 60th day following order unless Executive’s termination, and, to the Associate elects in writing extent reasonably necessary, for a different order (provided180-day period following such employment termination, however, that such election shall be subject make himself reasonably available to provide transition services and consultation to the Company, subject to his other business and personal commitments; PROVIDED, HOWEVER, that the level of such services and consultation does not exceed 20 percent of the level of the average level services Executive provided to the Company and its Affiliates in the 36-month period preceding such termination so as not to lose the presumption that such termination constitutes a “separation from service” under Section 409A of the Code and Treasury Regulation 1.409A-1(h).” (c) A new Section 7.15 is added, which reads as follows: “This Agreement and the payments hereunder are intended to be exempt from or to satisfy the requirements of Section 409A of the Code, including published guidance and regulations interpreting such Section, and should be interpreted accordingly. In particular, and without limiting the preceding sentence, if the Company determines Executive is a “specified employee” (within the meaning of Section 409A(a)(2)(B)(i) of the Code and determined in accordance with Treas. Reg. § 1.409A-1(i) and the Company’s approval specified employee identification policy, if made any, in effect on or the date of Executive’s termination) as of date of Executive’s termination, then any payment under this Agreement that is treated as deferred compensation payable on account of Executive’s separation from service under Section 409A of the Code shall be accumulated and paid on the date that is six months after the date on of separation from service (or Executive’s death, if occurring earlier) (without interest or earnings). Further, any reference to “termination of employment” shall mean, where applicable, a “separation from service” as set forth under Section 409A of the Code and Final Treasury Regulation § 1.409A-1(h). In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement or otherwise which constitutes a “deferral of compensation” within the event that triggers the payment occurs and to meaning of Code Section 409A. To the extent that any reimbursements made pursuant to this Agreement are taxable to Executive, any such election does not violate Code Section 409A): reduction of cash payments (reimbursement payment due to Executive shall be paid to Executive as promptly as practicable, and in reverse order no event later than the last day of the date on calendar year following the calendar year in which the expense was incurred. The reimbursements made pursuant to this Agreement are not subject to liquidation or exchange for another benefit and the amount of such cash payments would otherwise be made with benefits and reimbursements that Executive receives in one taxable year shall not affect the cash payments amount of such benefits or reimbursements that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefitsExecutive receives in any other taxable year. In the event that accelerated vesting any provision of stock awards this Agreement is inconsistent with Code Section 409A or such guidance, then the applicable provisions of Code Section 409A shall supersede such inconsistent provision. In accordance with the foregoing, Executive shall not have a legally binding right to be reducedany distribution made to Executive in error. Notwithstanding the foregoing, such accelerated vesting shall be cancelled in the reverse order no event will any of the grant date Company, its Affiliates or their respective officers, directors, employees, or agents have any liability for failure of the Associate’s stock awards unless Agreement to satisfy Code Section 409A and none of the Associate elects in writing a different order for cancellation.foregoing guarantees that the Agreement complies with Code Section 409A.”

Appears in 1 contract

Samples: Employment Agreement (Hughes Communications, Inc.)

Section 280G. (a) In Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that the total amount of payments to be received any payment or distribution by the Associate, Company or any of its affiliated companies to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, that are contingent upon ) (a change in ownership or control (“Payment”) would be an excess parachute payment within the meaning of Section section 280G of the Code) wouldInternal Revenue Code of 1986, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code as amended (the “Excise TaxCode”) (such excess only, an “Excess Payment”), then Executive shall forfeit the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced Excess Payments to the maximum amount that will cause extent the total amounts after-tax value to Executive of the payments not to Payments as reduced by such forfeiture would be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount after-tax value to Executive of the Payments absent such payments forfeiture. The forfeiture of Excess Payments, if applicable, shall be applied by: first reducing the Associate would otherwise cash severance described in Section 5(b)(i) hereof, then to cancellation of accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant), then to cancellation of accelerated vesting of other equity awards (based on the reverse order of the date of grant), and then to any other Payments on a pro-rata basis. All determinations required to be entitled made under this Section 5(g), and the assumptions to retain without be used in arriving at such reduction after the payment of all applicable taxesdetermination, including the Excise Tax. (b) The shall be made by a major accounting firm engaged with expertise in such matters designated by the Company for general audit purposes and reasonably acceptable to Executive (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company , which shall bear all expenses with respect provide detailed supporting calculations both to the determinations Company and Executive within 15 business days of the receipt of notice from Executive that there has been (or that there is likely to be) a Payment, or such earlier time as is requested by such Accounting Firm required to be made hereunderthe Company. The Accounting Firm engaged to make the In connection with making determinations under this Section 18 5(g), the Accounting Firm shall provide its calculationstake into account the value of any reasonable compensation for services to be rendered by Executive before or after the change in control, together with detailed supporting documentationincluding any noncompetition provisions that may apply to Executive (whether set forth in this Agreement or otherwise), to the Associate and the Company within fifteen (15) calendar days after shall cooperate in the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time valuation of any such services, including any noncompetition provisions. Any determination by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it in good faith shall furnish the Associate and be binding upon the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such paymentsand Executive. Any good faith determinations All fees and expenses of the Accounting Firm made hereunder for services performed pursuant to this Section 5(g) shall be final, binding, and conclusive upon Associate and borne solely by the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 1 contract

Samples: Employment Agreement (E.W. SCRIPPS Co)

Section 280G. (a) In If any of the event that the total amount of payments or benefits received or to be received by the AssociateExecutive (including, without limitation, any payment or benefits received in connection with a Change in Control or the Executive’s termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise, that are contingent upon a change in ownership or control ) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code) would, but for this Section 18(a), Code and will be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise such 280G Payments shall be reduced by the minimum amount required so that no amount payable to the maximum amount that Executive will cause the total amounts of the payments not to be subject to the Excise Tax, but only if Tax (with the amount of such payments, after such reduction cash severance to be reduced first and after payment of all applicable taxes on with any further reductions that may be required to be determined by Tax Counsel (as defined below) in a manner that minimizes the reduced amount, is equal impact to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise TaxExecutive). (b) The All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm engaged or independent tax counsel appointed by the Company for general audit purposes (the “Audit FirmTax Counsel”) whose determinations shall perform any be conclusive and binding on the Company and the Executive for all purposes. For purposes of making the calculations necessary in connection with and determinations required by this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and the Executive shall engage furnish the Tax Counsel with such other accounting firm information and documents as the Audit Firm shall recommend Tax Counsel may reasonably request in writing order to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)make its determinations under this Section 5.9. The Company shall bear all expenses costs the Tax Counsel may reasonably incur in connection with respect to the determinations by such Accounting Firm required to be made hereunder. its services. (c) The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together Executive hereby agrees with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right and any successor thereto to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, consider and conclusive upon Associate and the Company. If a reduction in payments take steps commonly used to minimize or benefits constituting eliminate any “parachute payments” is required within the meaning of Section 280G of the Code if requested to do so by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (Company or any successor thereto; provided, however, that such election the foregoing language shall be subject 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 Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationExecutive under this Agreement.

Appears in 1 contract

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

Section 280G. (a) In the event that the total amount of If any payments to be received by the Associate, pursuant to and other benefits provided for in this Agreement or otherwise, that are contingent upon a change in ownership or control (otherwise constitute “parachute payments” within the meaning of Section 280G of the Code) wouldCode and, but for this Section 18(a)9, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then payments and other benefits will be payable to you either in full or in such lesser amounts as would result, after taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, on your receipt on an after-tax basis of the greatest amount of payments to be received and other benefits, by reducing payments in the Associate pursuant to this Agreement or otherwise shall be reduced to manner that maximizes the maximum amount that will cause the total amounts after-tax value of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction your retained compensation and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does needed to not violate Code Section 409A): : (i) reduction of in cash payments payments; (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); ii) cancellation of accelerated vesting of stock awardsall equity awards with value; reduction of and (iii) other employee benefits. In benefits and in the event that accelerated acceleration of vesting of stock awards equity award compensation is to be reduced, such accelerated acceleration of vesting shall be cancelled in the reverse order of the grant date of grant. All mathematical determinations that are required to be made under this section, shall be made by a nationally recognized independent audit firm selected by the Associate’s stock awards unless Company (the Associate elects "Accountants") provided however that the Accountants shall not be any firm that renders services to the entity that is acquiring the Company (or Company assets) in writing a different order for cancellation.the underlying change in control. The Accountants shall provide their determinations, together with detailed supporting calculations regarding the amount of any relevant matters, both to the Company and to you. Such determinations shall be made by the Accountants using reasonable good faith interpretations of the Code. To the extent permitted by Q/A #32 of the Code Section 280G regulations, with respect to performing any present value calculations that are required in connection with this section, you and Company each affirmatively elect to utilize the Applicable Federal Rates ("AFR") that are in effect as of the execution of this Agreement and the Accountants shall therefore use such AFRs in their determinations and calculations. The Company shall pay the fees and costs of the Accountants which are reasonably incurred in connection with this section. Model N, Inc. | 000 Xxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 | P: 650.610.4600 | F: 000-000-0000 | xxx.xxxxxx.xxx

Appears in 1 contract

Samples: Employment Agreement (Model N, Inc.)

Section 280G. (a) In The Company and each of its Subsidiaries shall use commercially reasonable efforts to seek, prior to the event that initiation of the total amount of payments equityholder approval procedure described in Section 7.03(c), from each Person to whom any payment or benefit is required or proposed to be received made that could constitute "parachute payments" under Section 280G(b)(2) of the Code and Treasury Regulations promulgated thereunder ("Section 280G Payments"), a written agreement waiving such Person's right to receive some or all of such payment or benefit (the "Waived Benefits"), to the extent necessary so that all remaining payments and benefits applicable to such Person shall not be deemed a parachute payment, and accepting in substitution for the Waived Benefits the right to receive the Waived Benefits only if approved by the Associateequityholders of any of the Company and its applicable Subsidiaries in a manner that complies with Section 280G(b)(5)(B) of the Code and the Treasury Regulations issued thereunder. (b) In connection with the foregoing, the Purchaser shall provide the Seller with all information and documents necessary to allow the Company and each of its Subsidiaries to determine whether any payments made or to be made or benefits granted or to be granted pursuant to this Agreement any employment agreement or otherwiseother agreement, that are contingent upon a change in ownership arrangement or control contract entered into or negotiated by the Purchaser or any of its respective Affiliates ("Purchaser Payments"), together with all Section 280G Payments, could reasonably be considered to be "parachute payments" within the meaning of Section 280G of the Code280G(b)(2) would, but for this Section 18(a), be subject to the excise tax imposed by Section 4999 of the Code at least ten (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced 10) Business Days prior to the maximum amount that will cause the total amounts of the payments not to be subject Closing Date (and shall further provide any such updated information as is necessary prior to the Excise Tax, but only if the amount of such payments, after such reduction and after payment Closing Date). The Seller shall provide drafts of all applicable taxes on the reduced amountdisclosure documents, is equal waivers, "parachute payment" calculations and other relevant documents to Purchaser for review prior to obtaining such waivers or greater than the amount of soliciting such payments the Associate would otherwise be entitled to retain without vote and will implement any reasonable comments timely provided by Purchaser for incorporation into such reduction after the payment of all applicable taxes, including the Excise Taxwaivers and documents. (bc) The accounting firm engaged by Prior to the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculationsClosing, the Company and each of its Subsidiaries shall engage use their commercially reasonable efforts to obtain the approval by such other accounting firm as number of equityholders of such Company in a manner that complies with the Audit Firm shall recommend terms of Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations, of the right of each Person described in writing Section 7.03(a) to the Company to perform such calculations (the Audit Firm receive or such other accounting firmretain, as applicable, being hereinafter referred such Person's Waived Benefits, provided, that in no event shall this Section 7.03 be construed to as require the “Accounting Firm”). The Company or any of its Subsidiaries to compel any Person to waive any existing rights under any contract or agreement that such Person has with the Company, such Subsidiary or any other Person, and in no event shall bear all expenses the Company or any of its Subsidiaries be deemed in breach of this Section 7.03 if any such Person refuses to waive any such rights or if the equityholders fail to approve any Waived Benefits. (d) Notwithstanding anything to the contrary in this Section 7.03 or otherwise in this Agreement, to the extent the Purchaser has provided misinformation, or the Purchaser's omission of information has resulted in misinformation, with respect to any Purchaser Payments, (i) there shall be no breach of the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this representation contained in Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (155.14(i) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Companycovenant contained herein and (ii) for all purposes of this Agreement, including the calculation of any Taxes pursuant to Article XII, no payment by, or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable benefit provided to, any "disqualified individual" with respect to whom such payments, it misinformation or omission was provided shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations a "parachute payment" under Section 280G(b) of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCode.

Appears in 1 contract

Samples: Stock Purchase Agreement (Providence Service Corp)

Section 280G. If any payment or benefit you would receive or retain under this Severance Agreement, when combined with any other payment or benefit you receive or retain in connection with a “change in control event” within the meaning of Section 280G of the Code and the regulations and guidance thereunder (“Section 280G”), would (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon constitute a change in ownership or control (“parachute payment” within the meaning of Section 280G of the Code, and (b) would, but for this Section 18(a)8, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either payable in full or in such lesser amount 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 payments to be received by the Associate pursuant to this Agreement Payment notwithstanding that all or otherwise shall be reduced to the maximum amount that will cause the total amounts some portion of the payments not to Payment may be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal . All determinations required to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxesmade under this Section 8, including whether and to what extent the Excise Tax. (b) The Payment shall be reduced and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm engaged or consulting firm experience in matters regarding Section 280G of the Code as may be designated by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm280G Advisor”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 280G Advisor shall provide its calculations, together with detailed supporting documentation, calculations both to the Associate you and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as is requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate All fees and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations expenses of the Accounting Firm made hereunder shall be final, binding, and conclusive borne solely by the Company. Any final determination by the 280G Advisor shall be binding upon Associate you and the Company. If a reduction in payments or benefits constituting “parachute payments” is For purposes of making the calculations required by this Section 18(a)8, the reduction shall occur in 280G Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs application of Sections 280G and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order 4999 of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCode.

Appears in 1 contract

Samples: Severance Agreement (Ribbon Communications Inc.)

Section 280G. (a) In If any payment or benefit (any “Payment”) the event that Executive would receive from the total amount of payments to be received by the Associate, Company and/or UC pursuant to this Agreement or otherwise, that are contingent upon in connection with a change “Change in ownership or control Control” as defined in the Treasury Regulations promulgated under Code §280G would (i) constitute a “parachute payment” within the meaning of Section Code §280G of the CodeG, and (ii) would, but for this Section 18(a)sentence, be subject to the excise tax imposed by Section Code §4999 of the Code (the “Excise Tax”), then such Payment shall be adjusted to equal the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment (prior to adjustment) that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion of the Payment (prior to adjustment), which, 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 payments to be received by the Associate pursuant to this Agreement Payment (than that calculated under clause (x) above) notwithstanding that all or otherwise shall be reduced to the maximum amount that will cause the total amounts some portion of the payments not to Payment may be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a)necessary so that the Payment equals the Reduced Amount, the reduction shall occur in the following order unless the Associate elects Executive elects, in writing writing, a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the effective date on which of the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409APayment): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first)payments; cancellation of accelerated vesting of stock awardsoptions, if any; and reduction of employee benefits. In the event that accelerated acceleration of vesting of the stock awards options is to be reduced, such accelerated acceleration of vesting shall be cancelled in the reverse order of the grant date of grant of the AssociateExecutive’s stock awards options (i.e., the earliest granted stock option will be cancelled last) unless the Associate elects Executive elects, in writing writing, a different order for cancellation. (b) All calculations and determinations under Sub-Section 4.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Company (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Company and the Executive for all purposes. For purposes of making the calculations and determinations required by Sub-Section 4.9. The Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company, UC and the Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under Sub-Section 4.9. The Company and UC shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

Appears in 1 contract

Samples: Employment Agreement (Unifoil Holdings, Inc.)

Section 280G. (a) In This Section 8 shall apply if the event that the total amount of payments and benefits provided to be received by the Associate, you pursuant to the terms of this Agreement Agreement, the Letter Agreement, the Prior Employment Agreement, or otherwise, that are contingent upon a change in ownership or control (within connection with the meaning of Section 280G of tender offer and/or merger provided for in the Code) wouldMerger Agreement, but for this Section 18(a), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) as a result of the Payment being required to be taken into account under Section 280G(b)(2) of the Code (such excise tax, together with any interest and penalties, are hereinafter referred to as the “Excise Tax”). It is the intention of the Company and you in applying this Section 8 that you receive the maximum net after-tax benefit from this Agreement. To effectuate said intention, then the Company and you agree that the amount of payments to be received by the Associate pursuant to any payment or benefit described in this Agreement shall be payable only if: (i) the net amount that would be retained by you after deduction of all taxes applicable to the payment or otherwise benefit, including the Excise Tax, is greater than (ii) the net amount that would be retained by you after deduction of all taxes applicable to the payment or benefit after the payment or benefit is reduced to the maximum amount which you may receive without becoming subject to the Excise Tax. If the amount described in clause (ii) of the previous sentence is greater than the amount described in clause (i), then you agree that such payment or benefit you are entitled to receive under this Agreement shall be reduced to the maximum amount that will cause you may receive without causing the total amounts of the payments not payment or benefit to be subject to the Excise TaxTax (any such reduction in payments or benefits shall be referred to herein as a “Cutback”). Subject to the provisions of this Section 8, but only if all determinations required to be made under this Section 8, including the determination of whether a Cutback is required and of the amount of any such paymentsCutback, after such reduction and after payment of all applicable taxes on the reduced amount, is equal shall be made by PricewaterhouseCoopers LLP (or if they are unwilling or unable to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. serve Deloitte & Touche USA LLP) (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company , which shall bear all expenses with respect provide detailed supporting calculations both to the determinations by such Accounting Firm required to Company and you and shall be made hereunder. The Accounting Firm engaged to make on the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Companybasis of substantial authority. If the Accounting Firm determines that no Excise Tax a Cutback is payable with respect to such paymentsrequired under this Section 8, it shall furnish you with a written opinion that it is “more likely than not”, or such higher standard as adopted by the Associate and Treasury Department from time to time, that the Cutback is so required. Any determination by the Accounting Firm meeting the requirements of this Section 8 shall be binding on the Company with an opinion reasonably acceptable and you, subject only to Associate that no Excise Tax will be imposed with respect to such paymentsthis Section 8. Any good faith determinations The fees and disbursements of the Accounting Firm made hereunder in performing the determinations under this Section shall be final, binding, and conclusive upon Associate and borne solely by the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a)Notwithstanding the foregoing, the reduction shall occur in the following order unless the Associate elects in writing a different order (providedparties acknowledge that, however, that such election shall be subject prior to the Company’s approval if made Start Date, the Accounting Firm will prepare a good faith estimate of Excise Tax implications of payments and benefits that are provided to you under this Agreement on or after before the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationStart Date.

Appears in 1 contract

Samples: Employment Agreement (Koninklijke Philips Electronics Nv)

Section 280G. (a) In Notwithstanding anything herein to the contrary, in the event that the total amount of payments to an independent, nationally recognized, accounting firm or financial advisory firm which shall be received designated by the AssociateCompany with the Employee’s written consent (which consent shall not be unreasonably withheld) (the “Accounting Firm”) shall determine that any payment or distribution of any type to or for the Employee’s benefit made by the Company, pursuant to this Agreement or otherwiseby any of its affiliates, that are contingent upon a change in by any person who acquires ownership or effective control or ownership of the Company or a substantial portion of the Company’s assets (within the meaning of Section 280G of the CodeCode and the regulations thereunder) wouldor by any affiliate of such person, but for whether paid or payable or distributed or distributable pursuant to the terms of this Section 18(aAgreement or otherwise (collectively, the “Total Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are collectively referred to as the “Excise Tax”), then the amount of Accounting Firm shall determine whether such payments to be received by the Associate pursuant to this Agreement or otherwise distributions or benefits shall be reduced to the maximum such lesser amount that will cause the total amounts as would result in no portion of the such payments not to be or distributions or benefits being subject to the Excise Tax, but . Such reduction shall occur if and only if to the amount of such payments, after such reduction and after payment of all applicable taxes on extent that it would result in the reduced Employee retaining a larger amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable on an after-tax basis (taking into account federal, state and local income taxes, including employment, social security and Medicare taxes, the imposition of the Excise Tax. Tax and all other taxes, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied (bor is likely to apply) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (Employee’s taxable income for the Audit Firm tax year in which the transaction which causes the application of Section 280G of the Code occurs, or such other accounting firm, as applicable, being hereinafter referred to rate(s) as the Accounting Firm”). The Company shall bear all expenses with respect Firm determines to be likely to apply to the determinations by such Accounting Firm required Employee in the relevant tax year(s) in which any of the Total Payments is expected to be made hereunder. The Accounting Firm engaged to make than if the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to Employee received all of the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the CompanyTotal Payments. If the Accounting Firm determines that no Excise Tax is payable with respect to such paymentsthe Employee would not retain a larger amount on an after-tax basis if the Total Payments were so reduced, it then the Employee shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations retain all of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the CompanyTotal Payments. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a)the Total Payments are to be reduced, the reduction shall occur in the following order unless the Associate elects in writing a different order order: (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): 1) reduction of cash payments for which the full amount is treated as a “parachute payment” (in reverse order as defined under Section 280G of the date on which such cash payments would otherwise be made with Code and the cash payments that would otherwise be made last being reduced firstregulations thereunder); (2) cancellation of accelerated vesting (or, if necessary, payment) of stock awardscash awards for which the full amount is not treated as a parachute payment; (3) reduction of any continued employee benefits. In the event that ; and (4) cancellation or reduction of any accelerated vesting of stock equity awards. In selecting the equity awards is to (if any) for which vesting will be reducedcancelled or reduced under clause (4) of the preceding sentence, such accelerated vesting awards shall be cancelled selected in a manner that maximizes the after-tax aggregate amount of reduced Total Payments provided to you, provided that if (and only if) necessary in order to avoid the imposition of an additional tax under Section 409A of the Code (as defined below), awards instead shall be selected in the reverse order of the grant date of grant. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. The Employee and the Company shall furnish such documentation and documents as may be necessary for the Accounting Firm to perform the requisite Section 280G of the Code computations and analysis, and the Accounting Firm shall provide a written report of its determinations, hereunder, including detailed supporting calculations. If the Accounting Firm determines that aggregate Total Payments should be reduced as described above, it shall promptly notify the Employee and the Company to that effect. In the absence of manifest error, all determinations made by the Accounting Firm under this Section 21 shall be binding on you and the Company and shall be made as soon as reasonably practicable and in no event later than fifteen (15) days following the later of your date of termination of employment or the date of the Associate’s stock awards unless transaction which causes the Associate elects application of Section 280G of the Code. The Company shall bear all costs, fees and expenses of the Accounting Firm. To the extent requested by the Employee, the Company shall cooperate with the Employee in writing good faith in valuing, and the Accounting Firm shall take into account the value of, services to be provided by the Employee (including your agreeing to refrain from performing services pursuant to a different covenant not to compete) before, on or after the date of the transaction which causes the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final 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 such final regulations in accordance with Q&A-5(a) of such final regulations. If it is ultimately determined (by IRS private letter ruling or closing agreement, court decision or otherwise) that your Total Payments were reduced by too much or by too little in order for cancellationto accomplish the purpose of this Section 21, you and the Company shall promptly cooperate to correct such underpayment or overpayment in a manner consistent with the purpose of this Section 21.

Appears in 1 contract

Samples: Employment Agreement (Triangle Petroleum Corp)

Section 280G. If any payment or benefit (a) In the event that the total amount of including payments to be received by the Associate, and benefits pursuant to this Agreement Agreement) you would receive in connection with the Merger from the Company or otherwiseotherwise (each, that are contingent upon a change in ownership or control “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) would, but for this Section 18(a)sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise Company shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction pay and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise you shall be entitled to retain without such reduction receive an additional payment (the “Gross-Up Payment”) from the Company in an amount that, after the payment of all applicable taxes (including, without limitation, (i) any income or employment taxes, including (ii) any interest or penalties imposed with respect to such taxes, and (iii) any additional excise tax imposed by Section 4999 of the Code) on the Gross-Up Payment, you shall retain, in addition to the Payments, an amount equal to the full Excise Tax. (b) The . All determinations required to be made under this Agreement, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the accounting firm engaged by the Company for general audit tax compliance purposes (as of the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing day prior to the Company to perform such calculations effective date of the change in control transaction triggering the Payment (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect will withhold and pay over to you, or to the determinations by such Accounting Firm Internal Revenue Service (“IRS”) and any state or local taxing authority (together with the IRS, a “Taxing Authority”) on your behalf, as applicable, an amount equal to the Gross-Up Payment in addition to any other amounts required to be withheld and paid over to any Taxing Authority in respect of any Payments, in each case as permitted under the applicable Treasury regulations. Such payment shall be made hereunder. The Accounting Firm engaged to make on or before the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to due date of the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Companyrelevant taxes. If the initial determination of the Accounting Firm determines that no Excise Tax is payable with respect later determined to such paymentsbe incorrect, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of redetermined by the Accounting Firm in accordance with the applicable Treasury regulations, and the amount of the Gross-Up Payment payable to you or to any Taxing Authority on your behalf will be redetermined by the Accounting Firm. In such event, the Company shall pay to you or to the relevant Taxing Authority on your behalf any resulting underpayment, or you shall return to the Company any resulting overpayment that is paid to you thereafter by any Taxing Authority. Except as hereinafter set forth in the case of a claim made hereunder by a Taxing Authority, any determination (or redetermination, if applicable) by the Accounting Firm of the amount of the Gross-Up Payment shall be final, bindingbinding upon the Company and you, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.you

Appears in 1 contract

Samples: Offer of Employment (Design Therapeutics, Inc.)

Section 280G. (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon Company undergoes a change in ownership control prior to the time that it (or control any Affiliate that would be treated, together with the Company, as a single corporation under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations thereunder) has stock that is readily tradeable on an established securities market (within the meaning of the Section 280G of the Code of 1986 and the regulations thereunder), the Company agrees, upon the Executive’s request (the “Request”), to use its reasonable best efforts to seek the requisite approval by its shareholders of the payments proposed to be made to the Executive in connection with such change in control by taking all administrative steps necessary to prevent having the payments or any portion thereof characterized as “parachute payments” under Sections 280G and 4999 of the Code. The Company’s actions pursuant to this provision are not intended to bind, nor shall be construed as binding, the shareholders of the Company. In connection with the obtaining of such approval, if so requested, the Executive agrees to undertake any such waivers that may be required in order for the Company to validly seek the approval of its shareholders. Prior to making the Request, the Executive may seek, at the Company’s expense, input from the Company’s public accounting firm (the “Accounting Firm”) wouldregarding the Executive’s potential parachute payments. The Company shall cooperate with, and provide the necessary information to, the Executive and the Accounting Firm for purposes of determining the Executive’s potential parachute payments. (b) If the Executive does not request that the Company seek the shareholder approval described in subsection (a) above: (i) In the event it shall be determined that all, or any portion, of the payments or benefits provided under this Agreement, either alone or together with other payments or benefits which the Executive receives or is entitled to receive in connection with the Executive’s services for the Company or an Affiliate (the “Payments”), but determined for this Section 18(apurpose without regard to any required Gross-Up Payment (as defined below), will be subject to the excise tax imposed by Section 4999 of the Code or any comparable tax imposed by any replacement or successor provision of United States tax law, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Executive one or more additional cash payments (each such payment, a “Gross-Up Payment”) in such amounts so that the net cash amount remaining from such Gross-Up Payment after deduction or payment of (a) the Excise Tax imposed on the Gross-Up Payments and (b) all federal, state and local income and employment taxes imposed upon the Gross-Up Payments, shall equal fifty percent (50%) of the excise tax imposed by Section 4999 of the Code on the total Payments. The intent of the parties is that the Company shall be responsible for, and shall pay, 50% of the Excise Tax on any Payment and on any Gross-Up Payment and 50% of any income and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment, as well as bearing any loss of tax deduction caused by the Gross-Up Payment. For purposes of determining the amount of payments any Gross-Up Payment, the Executive shall be deemed to pay (a) federal income tax at the highest marginal rate in effect for the calendar year during which such Gross-Up Payment is to be received by made, (b) FICA taxes at the Associate pursuant highest rate applicable to this Agreement wages in excess of the Social Security taxable wage base in effect for such calendar year, and (c) state and local income taxes at the highest marginal rates in effect for such calendar year in the state and local municipality of the Executive’s principal residence as of the date of termination of employment with the Company or otherwise shall be reduced to the maximum amount date that will cause any portion of the total amounts of the payments not to be Payments become subject to the Excise Tax, but only if net of the amount reduction in federal income tax attributable to the deduction of such payments, after such reduction state and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable local income taxes, including and taking into account any limitation on deductions or credits or comparable negative impact for purposes of federal income tax as a result of the Excise Taxtotal Payments made to the Executive during such calendar year. (bii) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the All determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 14, including whether and when a Gross-Up payment is required and the amount of the such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Accounting Firm which shall provide its calculations, together with detailed supporting documentation, calculations both to the Associate Company and the Company Executive within fifteen (15) calendar business days after of the date on which receipt of notice from the Associate’s right to Executive that there has been a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) Payment, or such other earlier time as is requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate All fees and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations expenses of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and borne solely by the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Any Gross-Up Payment, as determined pursuant to this Section 18(a)14, the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject paid by the Company to the CompanyExecutive within thirty (30) days of the receipt of the Accounting Firm’s approval if made on or after determination; provided that in no event shall any Gross-Up Payment be paid later than the date on end of the calendar year next following the calendar year in which the event that triggers Executive or the payment occurs and to Company remits the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of taxes for which the date on which such cash payments would otherwise be made with Gross-Up Payment is being paid. Any determination by the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting Accounting Firm shall be cancelled in binding on the reverse order of Company and the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationExecutive.

Appears in 1 contract

Samples: Employment Agreement (Bloomin' Brands, Inc.)

Section 280G. The Company shall (ai) In the event that the total amount of payments to be received by the Associatesecure from any Person who is a “disqualified individual”, pursuant to this Agreement or otherwise, that are contingent upon a change as defined in ownership or control (within the meaning of Section 280G of the Code) would, but for this and who has a right to any payments and/or benefits or potential right to any payments and/or benefits in connection with the consummation of the Merger that would be deemed to constitute “parachute payments” pursuant to Section 18(a)280G of the Code, be subject a waiver of such Person’s rights to any such payments and/or benefits applicable to such Person to the excise tax imposed by extent that all remaining payments and/or benefits applicable to such Person shall not be deemed to be “parachute payments” pursuant to Section 4999 280G of the Code (the “Excise TaxWaived 280G Benefits), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction ) and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (bii) The accounting firm engaged submit for approval by the Company for general audit purposes Stockholders the Waived 280G Benefits, to the extent and in the manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code (such vote the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm280G Stockholder Vote”). The Company shall bear all expenses not pay any of the Waived 280G Benefits if such payment is not approved by the Company Stockholders as contemplated above. If applicable, prior to the Closing Date, the Company shall deliver to Parent evidence satisfactory to Parent that a vote of the Company Stockholders was received in conformance with Section 280G of the Code and the regulations thereunder, or that such requisite stockholder approval has not been obtained with respect to the determinations by Waived 280G Benefits, and, as a consequence, the Waived 280G Benefits have not been and shall not be made or provided. If applicable, not less than three Business Days before taking such Accounting Firm required actions, the Company shall deliver to Parent for review and comment copies of any documents or agreements necessary to effect this Section 5.1, including any stockholder consent form, disclosure statement, or waiver, and the Company shall reasonably incorporate comments received from Parent on such documents or agreements. In connection with the foregoing, Parent shall provide the Company with all information and documents necessary to allow the Company to determine whether any payments made or to be made hereunder. The Accounting Firm engaged or benefits granted or to make the determinations under this Section 18 shall provide be granted pursuant to any employment agreement or other agreement, arrangement or contract entered into or negotiated by Parent or any of its calculationsAffiliates, together with detailed supporting documentationall other potential payments, could constitute parachute payments under Section 280G of the Code (and shall further provide any such updated information as is necessary prior to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(aClosing Date), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.

Appears in 1 contract

Samples: Merger Agreement (Chimerix Inc)

Section 280G. (a) In the event that the total amount of payments to be received by the AssociateExecutive, pursuant to this Agreement or otherwise, that are contingent upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a22(a), be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be received by the Associate Executive pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate Executive would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 1822; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 22 shall provide its calculations, together with detailed supporting documentation, to the Associate Executive and the Company within fifteen (15) calendar days after the date on which the AssociateExecutive’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate Executive or the Company) or such other time as requested by the Associate Executive or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate Executive and the Company with an opinion reasonably acceptable to Associate Executive that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” (as defined in Section 280G(b)(2) of the Code) is required by Section 18(a22(a), the reduction shall occur in the following order unless the Associate Executive elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A409A of the Code): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the AssociateExecutive’s stock awards unless the Associate Executive elects in writing a different order for cancellation.

Appears in 1 contract

Samples: Employment Agreement (Americas Carmart Inc)

Section 280G. (a) In If any of the event that the total amount of payments or benefits received or to be received by Executive (including, without limitation, any payment or benefits received in connection with the Associatetermination of Executive’s employment, whether following a Change in Control or otherwise, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise, that are contingent upon a change in ownership or control ) (all such payments collectively referred to herein as the "280G Payments") constitute "parachute payments" within the meaning of Section 280G of the Code) Code and would, but for this Section 18(a)8.9, be subject to the excise tax imposed by under Section 4999 of the Code (the "Excise Tax"), then prior to making the amount of payments to be received by the Associate pursuant to this Agreement or otherwise 280G Payments, a calculation shall be reduced made comparing (a) the Net Benefit (as defined below) to the maximum amount that will cause the total amounts Executive of the payments not 280G Payments after payment of the Excise Tax; to be (b) the Net Benefit to the Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax, but only . Only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, calculated under (a) above is equal to or greater less than the amount under (b) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of such payments the Associate would otherwise be entitled 280G Payments is subject to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged . "Net Benefit" shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 8.9 shall be made in a manner determined by the Company for general audit purposes that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 8.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Company (the “Audit Firm”"Tax Counsel") whose determinations shall perform any be conclusive and binding on the Company and Executive for all purposes. For purposes of making the calculations necessary in connection with and determinations required by this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations8.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and Executive shall engage furnish the Tax Counsel with such other accounting firm information and documents as the Audit Firm shall recommend Tax Counsel may reasonably request in writing order to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm”)make its determinations under this Section 8.9. The Company shall bear all expenses with respect to costs the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to Tax Counsel may reasonably incur in connection 11 | P a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellation.g e

Appears in 1 contract

Samples: Employment Agreement (Celsius Holdings, Inc.)

Section 280G. To the extent applicable payment rights are waived and 280G Waivers obtained or are otherwise not payable absent approval of the Stockholders, the Company shall promptly, but, in any event, no later than two (2) Business Days prior to the First Effective Time, submit for approval by the Stockholders by the requisite vote (and in a manner satisfactory to Parent), by such number of Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payment and/or benefits that may, separately or in the aggregate, constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (“Section 280G Payments”) (which determination shall be made by the Company and shall be subject to review and approval by Parent), such that all such payments and benefits shall not be deemed to be Section 280G Payments (the “280G Approval”), and prior to the First Effective Time the Company shall deliver to Parent evidence satisfactory to Parent that a vote of Stockholders was solicited in conformance with Section 280G and the regulations promulgated thereunder and that (a) In the event such requisite 280G Approval was obtained with respect to any Section 280G Payment, or (b) that the total amount of payments 280G Approval was not obtained with respect to any Section 280G Payment and as a consequence, that Section 280G Payment shall not be received by the Associatemade or provided, pursuant to this Agreement or otherwisethe waivers of those payments and/or benefits which were executed by the affected individuals prior to the vote of the Stockholders (the “280G Waivers”). Prior to soliciting the 280G Approval, that are contingent upon the Company shall use commercially reasonable efforts to obtain and deliver to Parent a change in ownership or control 280G Waiver from each Person who the Company reasonably believes is, with respect to the Company, a “disqualified individual” (within the meaning of Section 280G of the Code) would, but for this and who has received or could otherwise receive or have the right or entitlement to receive any Section 18(a), be subject 280G Payments. Prior to obtaining the excise tax imposed by Section 4999 of 280G Waivers described in the Code (the “Excise Tax”), then the amount of payments to be received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax. (b) The accounting firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculationsprevious sentence, the Company shall engage such other accounting firm as provide, or cause to be provided, to Parent a draft of all solicitation and related documents (including any calculations of the Audit Firm shall recommend Section 280G Payments) contemplated in writing to the Company to perform such calculations (the Audit Firm or such other accounting firmthis Section 5.04, as applicable, being hereinafter referred to as the “Accounting Firm”)including any disclosure documents. The Company shall bear all expenses with respect to the determinations incorporate any reasonable comments into such documents that are made timely by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations, together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationParent.

Appears in 1 contract

Samples: Merger Agreement (Celldex Therapeutics, Inc.)

Section 280G. If any payment or benefit you would receive or retain under this Agreement, when combined with any other payment or benefit you receive or retain in connection with a “change in control event” within the meaning of Section 280G of the Code and the regulations and guidance thereunder (“Section 280G”), would (a) In the event that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon constitute a change in ownership or control (“parachute payment” within the meaning of Section 280G of the Code, and (b) would, but for this Section 18(a)8, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either payable in full or in such lesser amount 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 payments to be received by the Associate pursuant to this Agreement Payment notwithstanding that all or otherwise shall be reduced to the maximum amount that will cause the total amounts some portion of the payments not to Payment may be subject to the Excise Tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal . All determinations required to or greater than the amount of such payments the Associate would otherwise be entitled to retain without such reduction after the payment of all applicable taxesmade under this Section 8, including whether and to what extent the Excise Tax. (b) The Payment shall be reduced and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm engaged or consulting firm experience in matters regarding Section 280G of the Code as may be designated by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting Firm280G Advisor”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 280G Advisor shall provide its calculations, together with detailed supporting documentation, calculations both to the Associate you and the Company within fifteen (15) calendar days after the date on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by Associate or the Company) or such other time as is requested by the Associate or Company. All fees and expenses of the 280G Advisor shall be borne solely by the Company. If Any final determination by the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of the Accounting Firm made hereunder 280G Advisor shall be final, binding, and conclusive binding upon Associate you and the Company. If a reduction in payments or benefits constituting “parachute payments” is For purposes of making the calculations required by this Section 18(a)8, the reduction shall occur in 280G Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the following order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s approval if made on or after the date on which the event that triggers the payment occurs application of Sections 280G and to the extent that such election does not violate Code Section 409A): reduction of cash payments (in reverse order 4999 of the date on which such cash payments would otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced, such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless the Associate elects in writing a different order for cancellationCode.

Appears in 1 contract

Samples: Severance Agreement (Ribbon Communications Inc.)