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Common use of Section 280G Clause in Contracts

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 8 contracts

Samples: Employment Agreement (Energy Fuels Inc), Employment Agreement (Energy Fuels Inc), Employment Agreement (Energy Fuels Inc)

Section 280G. (i) Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if in the event that it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the payments or benefits provided or Code) to be provided by the Company or its affiliates to Employee or for Employee’s the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the Covered PaymentsPAYMENTS) ), would constitute an excess parachute paymentspayment” within the meaning of Section 280G of the Code Code, the Company shall reduce (but not below zero) the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below), if reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no reduction was made. The Payments shall be reduced as described in the preceding sentence only if the net amount of the Payments, as so reduced (and wouldafter subtracting the net amount of federal, state and local income and payroll taxes on the reduced Payments), is greater than or equal to the net amount of the Payments without such reduction (but for after subtracting the net amount of federal, state and local income and payroll taxes on the Payments and the amount of Excise Tax (as defined below) to which Executive would be subject with respect to the unreduced Payments). Only amounts payable under this Section 3.3(c) Agreement shall be reduced pursuant to this subsection (i). The “REDUCED AMOUNT” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment under this Agreement to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code. The term “EXCISE TAX” means the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or Code, together with any interest or penalties imposed with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeeexcise tax. For purposes of determining which the calculations under this SECTION 3.2(d), the severance payments to be made under this Agreement shall be allocated as consideration for the noncompetition covenant under SECTION 2.3 to the maximum extent allowable under Section 280G of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at Code and the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeeregulations thereunder.

Appears in 7 contracts

Samples: Employment Agreement, Employment Agreement (Contango Oil & Gas Co), Employment Agreement (Contango Oil & Gas Co)

Section 280G. Notwithstanding (a) In the event that it shall be determined that any other provisions of this Agreement, payment or any other plan, arrangement or agreement distribution to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s the benefit pursuant to the terms of Executive under this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and under any other Company plan, contract or agreement would, but for the effect of this Section 3.3(c) 7.16, be subject to the excise tax imposed under by 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 excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”), then then, at the following shall apply: election of Executive, in the event that the after-tax value of all Payments to Executive (i) If such after-tax value to reflect the Covered Payments, reduced by the sum deduction of (1) the Excise Tax and all income or other taxes on such Payments) would, in the aggregate, be less than the after-tax value to Executive of the Safe Harbor Amount, (2i) the total cash portions of the FederalPayments payable to Executive under this Agreement shall be reduced, statein the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and local income and employment taxes payable by Employee on (ii) if the amount reduction of the Covered cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to Executive under any other plans shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in excess the aggregate, equals the Safe Harbor Amount, and (iii) if the reduction of three all cash portions of the Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount. (b) As used herein, (i) “Payment” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise, (ii) “Safe Harbor Amount” shall mean 2.99 times EmployeeExecutive’s “base amount,” within the meaning of Section 280(G280G(b)(3) of the Code, and (iii) “Parachute Value” of a Payment shall mean the present value as of the date of the Change in Control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code less one dollar (the “Threshold Amount”), are greater than or equal for purposes of determining whether and to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) what extent the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall will apply to Employee such Payment. All calculations under this section shall be made by a nationally recognized accounting firm selected reasonably by the Company (and the “Accounting Firm”), which shall provide detailed supporting calculations both to Company’s outside auditor at the Company Company’s expense and Employee within 15 business days of at the date of termination, if applicable, or at such earlier time as is times reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Appears in 7 contracts

Samples: Employment Agreement (e.l.f. Beauty, Inc.), Employment Agreement (e.l.f. Beauty, Inc.), Employment Agreement (e.l.f. Beauty, Inc.)

Section 280G. Notwithstanding any other provisions Any provision of this Agreement, or any other plan, arrangement or agreement the Plan to the contrarycontrary notwithstanding, if any of the payments payment or benefits provided or to be provided by benefit a Covered Employee would receive from the Company and its Subsidiaries or its affiliates to Employee or for Employee’s benefit an acquiror pursuant to the terms of this Agreement Plan or otherwise (a Covered PaymentsPayment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code Code, and would, (ii) but for this Section 3.3(c) sentence, be subject to the excise tax imposed under by 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or such Payment will be equal to the Threshold Higher Amount (defined below). The “Higher Amount, Employee shall ” will be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax and or (y) the total largest portion, up to and including the total, of the FederalPayment, statewhichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and local income and employment taxes the Excise Tax (all computed at the highest applicable marginal rate), results in Covered Employee’s receipt, on the amount an after-tax basis, of the Covered Payments which are in excess greater economic benefit notwithstanding that all or some portion of the Threshold Amount, then the Covered Payments shall Payment may be reduced (but not below zero) subject to the extent Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the sum Payment equals the Higher Amount, reduction will occur in the manner that results in the greatest economic benefit for a Covered Employee. If more than one method of all Covered Payments reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. Notwithstanding the foregoing, any reduction shall comply with Section 409A including, but not exceed limited to, the Threshold Amountordering of any such reduction. In such eventno event will the Company, any Subsidiary or any stockholder be liable to any Covered Employee for any amounts not paid as a result of the operation of this Section 8. The Company will use commercially reasonable efforts to cause the accounting or law firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to Covered Employee and the Company within fifteen (15) calendar days after the date on which the Covered Payments shall be reduced in the following order: Employee’s right to a Payment is triggered (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over if requested at that time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (Covered Employee or the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, Company) or at such earlier other time as is reasonably requested by the Company Covered Employee or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeCompany.

Appears in 6 contracts

Samples: Executive Employment Agreement, Executive Employment Agreement (Urovant Sciences Ltd.), Executive Employment Agreement (Urovant Sciences Ltd.)

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s 's benefit pursuant to the terms of this Agreement or otherwise ("Covered Payments") constitute "parachute payments" within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “'s "base amount" within the meaning of Section 280(G) of the Code less one dollar (the "Threshold Amount"), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s 's residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 6 contracts

Samples: Employment Agreement (Energy Fuels Inc), Employment Agreement (Energy Fuels Inc), Employment Agreement (Energy Fuels Inc)

Section 280G. Notwithstanding In the event that it shall be determined that any other provisions of this Agreement, payment or any other plan, arrangement or agreement distribution to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s the benefit pursuant to the terms of Executive under this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and under any other Company plan, contract or agreement would, but for the effect of this Section 3.3(c) 7.16, be subject to the excise tax imposed under by 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 excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”), then then, at the following shall apply: election of Executive, in the event that the after-tax value of all Payments (ias defined below) If to Executive (such after-tax value to reflect the Covered deduction of the Excise Tax and all income or other taxes on such Payments) would, reduced by in the sum aggregate, be less than the after-tax value to Executive of the Safe Harbor Amount (as defined below), (1) the Excise Tax cash portions of the Payments payable to Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the total reduction of the Federalcash portions of the Payments, statepayable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to Executive under any other plans shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and local income and employment taxes payable by Employee on (3) if the amount reduction of all cash portions of the Covered Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in excess the aggregate, equals the Safe Harbor Amount. As used herein, (x) “Payment” shall mean any payment or distribution in the nature of three compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise, (y) “Safe Harbor Amount” shall mean 2.99 times EmployeeExecutive’s “base amount,” within the meaning of Section 280(G280G(b)(3) of the Code, and (z) “Parachute Value” of a Payment shall mean the present value as of the date of the Change in Control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code less one dollar (the “Threshold Amount”), are greater than or equal for purposes of determining whether and to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) what extent the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall will apply to Employee such Payment. All calculations under this section shall be made by a nationally recognized accounting firm selected reasonably by the Company (and the “Accounting Firm”), which shall provide detailed supporting calculations both to Company’s outside auditor at the Company Company’s expense and Employee within 15 business days of at the date of termination, if applicable, or at such earlier time as is times reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Appears in 5 contracts

Samples: Employment Agreement (e.l.f. Beauty, Inc.), Employment Agreement (e.l.f. Beauty, Inc.), Employment Agreement (e.l.f. Beauty, Inc.)

Section 280G. Notwithstanding any other provisions of anything in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if in the event that any of the payments payment or benefits provided benefit received or to be provided received by the Company Executive (including any payment or its affiliates to Employee benefit received in connection with a Change of Control or for Employeethe termination of Executive’s benefit employment, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the Covered Total Payments”) constitute “parachute payments” within would not be deductible (in whole or part) by the meaning Company as a result of Section 280G of the Code, then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any such other plan, arrangement or agreement), the portion of the Total Payments that do not constitute deferred compensation within the meaning of Section 409A of the Code shall first be reduced (if necessary, to zero), and wouldall other Total Payments shall thereafter be reduced (if necessary, to zero), with cash payments being reduced before non-cash payments, and payments to be paid last being reduced first; provided, however, that such reduction shall only be made if the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to the amount of such Total Payments without such reduction (but for this Section 3.3(c) be subject to after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under 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 on such unreduced Total Payments). It is possible that, after the determinations and selections made pursuant to such taxes (collectivelythis Section 23, the Executive will receive Total Payments that are, in the aggregate, either more or less than the amount properly determined under this Section 23 (hereafter referred to as an Excise TaxExcess Payment” or “Underpayment, as applicable). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then Executive shall promptly repay the following shall apply: (i) If Excess Payment to the Covered PaymentsCompany, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee together with interest on the amount of Excess Payment at the Covered Payments which are applicable federal rate (as defined in excess of three times Employee’s “base amount” within the meaning of Section 280(G1274(d) of the Code less one dollar (Code) from the “Threshold Amount”)date of Executive’s receipt of such Excess Payment until the date of such repayment. In the event that it is determined by a court or by the accounting firm which was, are greater than or immediately prior to the Change in Control, the Company's independent auditor, upon request of either party, that an Underpayment has occurred, the Company shall promptly pay an amount equal to the Threshold AmountUnderpayment to Executive (but in any event within ten (10) days of such determination), Employee shall be entitled together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the full benefits payable under this Agreement; and (ii) If Executive had the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of this Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of 23 not been applied until the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeepayment.

Appears in 5 contracts

Samples: Employment Agreement (BOVIE MEDICAL Corp), Employment Agreement (BOVIE MEDICAL Corp), Employment Agreement (Bovie Medical Corp)

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments (parachute payments” Parachute Payments”) within the meaning of Section 280G of the Code and would, but for this Section 3.3(c8.12(c) be subject to the excise tax imposed under 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 following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) after payment of the Code less one dollar (the “Threshold Amount”), are greater than or equal Excise Tax to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (1ii) the Covered Payments, but greater than (2) above will the Covered Payments be reduced by to the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess is subject to the Excise Tax (that amount, the “Reduced Amount”). “Net Benefit” shall mean the present value of the Threshold Amount, then the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. Any such reduction shall be reduced (but not below zero) to made in accordance with Section 409A of the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, Code and the Covered Payments shall be reduced in a manner that maximizes the following order: (A) cash payments not Executive’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where two economically equivalent amounts are subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g.reduction but payable at different times, in installments, etc.), then the payments such amounts shall be reduced in reverse chronological orderon a pro rata basis but not below zero. The Any determination as to which of the alternative provisions of required under this Section 3.3(c)(ii) shall apply to Employee 8.12(c), including whether any payments or benefits are parachute payments, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which in its sole discretion. The Executive shall provide detailed supporting calculations both to the Company with such information and Employee within 15 business days of the date of termination, if applicable, or at such earlier time documents as is reasonably requested by the Company or Employeemay reasonably request in order to make a determination under this Section 8.12(c). For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee The Company’s determination shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, final and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence binding on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Appears in 4 contracts

Samples: Employment Agreement (Amergent Hospitality Group, Inc), Employment Agreement (Amergent Hospitality Group, Inc), Employment Agreement (Chanticleer Holdings, Inc.)

Section 280G. (i) Notwithstanding any other provisions provision of this Agreement, except as set forth in Section 9(b)(ii), in the event that the Company undergoes a “Change in Ownership or Control” (as defined below), the Company shall not be obligated to provide to Executive a portion of any other plan, arrangement or agreement “Contingent Compensation Payments” (as defined below) that Executive would otherwise be entitled to receive to the contrary, if extent necessary to eliminate any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (Covered Payments”) constitute “excess parachute payments” within (as defined in Section 280G(b)(1) of the meaning Code) for Executive. For purposes of this Section 9(b), the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Payments” and the aggregate amount (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Amount.” (ii) Notwithstanding the provisions of Section 280G 9(b)(i), no such reduction in Contingent Compensation Payments shall be made if (i) the Eliminated Amount (computed without regard to this sentence) exceeds (ii) 100% of the Code aggregate present value (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-31 and wouldQ/A-32 or any successor provisions) of the amount of any additional taxes that would be incurred by Executive if the Eliminated Payments (determined without regard to this sentence) were paid to Executive (including, but for this Section 3.3(c) be subject to state and federal income taxes on the Eliminated Payments, the excise tax imposed under by 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 payable with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total all of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Contingent Compensation Payments which are in excess of three times EmployeeExecutive’s “base amount” within the meaning of (as defined in Section 280(G280G(b)(3) of the Code less one dollar (the “Threshold Amount”Code), are greater than and any withholding taxes). The override of such reduction in Contingent Compensation Payments pursuant to this Section 9(b)(ii) shall be referred to as a “Section 9(b)(ii) Override.” For purposes of this paragraph, if any federal or equal state income taxes would be attributable to the Threshold Amountreceipt of any Eliminated Payment, Employee the amount of such taxes shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced computed by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on multiplying the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected Eliminated Payment by the Company maximum combined federal and state income tax rate provided by law. (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. iii) For purposes of determining which of this Section 9(b) the alternative provisions of Section 3.3(c)(ii) following terms shall apply, Employee shall be deemed to pay Federal income taxes at have the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.following respective meanings:

Appears in 4 contracts

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

Section 280G. Notwithstanding (a) If any other provisions of payment or benefit (including payments and benefits pursuant to this Agreement, ) that Executive would receive in connection with a Change in Control or any other plan, arrangement or agreement to transaction (the contrary, if any of the payments or benefits provided or to be provided by “Transaction”) from the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered PaymentsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and would, (ii) but for this Section 3.3(c) sentence, be subject to the excise tax imposed under by 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 Company shall cause to be determined, before any amounts of the Transaction Payment are paid to Executive, which of the following shall apply: (i) If two alternative forms of payment would result in Executive’s receipt, on an after-tax basis, of the Covered Payments, reduced by greater amount of the sum Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that Executive receives the largest payment possible without the imposition of the Excise Tax and (2) a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the total Company shall cause to be taken into account the value of the Federalnoncompetition provision set forth in the NDA, stateall applicable federal, state and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) and the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes computed at the highest applicable marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of terminationrate, net of the maximum reduction in Federal federal income taxes which could be obtained from a deduction of such state and local taxes). Any If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to Executive as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment shall be reduced pro rata. (b) Notwithstanding the foregoing, in the event that no stock of the Company is readily tradeable on an established securities market or otherwise (within the meaning of Section 280G of the Code) at the time of the Change in Control of the Company, the Company shall cause a vote of shareholders to be held to approve the portion of the Transaction Payments that exceeds three times Executive’s “base amount” (within the meaning of Section 280G of the Code) (the “Excess Parachute Payments”) in accordance with Treas. Reg. §1.280G-1, and Executive shall cooperate with such vote of shareholders, including the execution of any required documentation subjecting Executive’s entitlement to all Excess Parachute Payments to such shareholder vote. In the event that the Company does not cause a vote of shareholder to be held to approve all Excess Parachute Payments, the provisions set forth in Section 5.6(a) shall apply. (c) Unless Executive and the Company otherwise agree in writing, any determination required under this section shall be made in writing by the Accounting Firm Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Accountants shall provide detailed supporting calculations to the Company and EmployeeExecutive as requested by the Company or Executive. Executive and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this section as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code.

Appears in 4 contracts

Samples: Employment Agreement (Axovant Gene Therapies Ltd.), Employment Agreement (Axovant Gene Therapies Ltd.), Employment Agreement (Axovant Gene Therapies Ltd.)

Section 280G. Notwithstanding In the event that it is determined that any other provisions payment or distribution in the nature of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided compensation made or to be provided made of any type to or for the benefit of Executive made by the Company, by any of its affiliates, by any person who acquires ownership or effective control of the Company or its affiliates to Employee ownership of a substantial portion of the Company’s assets (within the meaning of section 280G of the Code, and the regulations thereunder or for Employee’s benefit by any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or under any other agreement with or plan of the Company otherwise (the Covered Total Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would), but for this Section 3.3(c) would be subject Executive to the excise tax imposed under Section by 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 excise tax (collectivelysuch excise tax, together with any such interest or penalties, are collectively referred to as the “Excise Tax”), then the following either clauses (a) or (b) below shall applyapply or occur, as applicable: (ia) If the Covered Paymentsaggregate present value of the Total Payments (as calculated pursuant to the Code Section 280G final regulations) is less than 325% of Executive’s Base Amount, reduced by then such Total Payments shall be reduced, as necessary, to the smaller amount that is equal to $1.00 less than 300% of Executive’s Base Amount so as to eliminate imposition of the Excise Tax. (b) If the aggregate present value of the Total Payments (as calculated pursuant to the Code Section 280G final regulations) is equal to or greater than 325% of Executive’s Base Amount, then, the Company shall pay Executive a cash amount equal to the sum of of: (1i) any excise taxes that may be imposed on Executive under Code Sections 280G and 4999 (the “Excise Tax Restoration”) and (ii) for any taxes (including excise taxes) that may be imposed on the Excise Tax and (2) the total of the Federal, stateRestoration payment, and local income and employment for any interest or penalties related to such excise tax with all such computations performed applying the then highest marginal tax rates (excluding Federal social security taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employeegiven Executive’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not compensation will likely exceed the Threshold Amount. In social security limit for such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments year and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income federal taxes which could that may be obtained from the deduction of such state and local taxes). Such payment shall be made to Executive contemporaneously with the withholding of the Excise Tax from Executive within thirty days of the determination that there are excise taxes owed and will be in an amount so that Executive will be in the same position on an after-tax basis that he would have been if no excise taxes, interest and/or penalties had been imposed. (c) All mathematical determinations and all determinations of whether any of the Total Payments are “parachute payments” and/or are potentially subject to the Excise Tax (within the meaning of section 280G of the Code) that are required to be made under this Section 13, shall be made by an independent nationally recognized independent registered public accounting firm not currently retained by the Company and reasonably acceptable by Executive immediately prior to the Change in Control (the “Accountants”), who shall provide their determination, together with detailed supporting calculations regarding the amount of any relevant matters, both to the Company and to Executive within seven (7) business days of the Change in Control or Termination Date, as applicable, or such earlier time as is requested by the Company. Such determination shall be made by the Accountants using reasonable good faith interpretations of the Code. Any determination by the Accounting Firm Accountants shall be binding upon the Company and EmployeeExecutive, absent manifest error. The Company shall pay the fees and costs of the Accountants that are incurred in connection with this Section 13.

Appears in 4 contracts

Samples: Executive Employment Agreement (ConversionPoint Holdings, Inc.), Executive Employment Agreement (ConversionPoint Holdings, Inc.), Executive Employment Agreement (ConversionPoint Holdings, Inc.)

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments (parachute payments” Parachute Payments”) within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 5.9 be subject to the excise tax imposed under 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 following Covered Payments shall apply: be either (i) If reduced to the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess of three times Employee’s “base is subject to the Excise Tax (that amount” within the meaning of Section 280(G) of the Code less one dollar (, the “Threshold Reduced Amount”), are greater than ) or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If payable in full if the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total Executive’s receipt on an after-tax basis of the Federalfull amount of payments and benefits (after taking into account the applicable federal, state, local and local income foreign income, employment and employment excise taxes (including the Excise Tax)) would result in the Executive receiving an amount greater than the Reduced Amount on the amount of the Covered Payments which are an after-tax basis. Any reduction in excess of the Threshold Amount, then the Covered Payments shall be made 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 of the Code, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced (on a pro rata basis but not below zero. (b) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to All calculations and determinations under this Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee 5.9 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeExecutive for all purposes. For purposes of determining which 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 Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxesCode. Any determination by the Accounting Firm shall be binding upon the The Company and Employeethe 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 Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

Appears in 4 contracts

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

Section 280G. Notwithstanding In the event it shall be determined that any other provisions of this Agreement, payment or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided distribution by the Company or any of its affiliates to Employee or for Employee’s the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (the Covered Total Payments”), is or will be subject to the excise tax (the “Excise Tax”) constitute imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), if the net after-tax benefit to Executive after reducing Executive’s Total Payments to the Safe Harbor Cap is greater than the net after-tax (including the Excise Tax) benefit to Executive without such reduction. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the cash payments made pursuant to Section 5(a)(ii) of this Agreement, then to the payment made pursuant to Section 5(a)(iii) of this Agreement, then to any payment made pursuant to Section 5(a)(iv) of this Agreement, then to any payment made pursuant to Section 5(a)(v) of this Agreement, then to the benefits provided pursuant to Section 5(a)(vi) of this Agreement, and then to any other payment that triggers such Excise Tax in the following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant); (iii) cancellation of accelerated vesting of other equity awards (based on the reverse order of the date of grant); and (iv) reduction of any other payments due to Executive (with benefits or payments in any group having different payment terms being reduced on a pro-rata basis). All mathematical determinations, and all determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under 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”Code), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which that are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal required to the Threshold Amount, Employee shall be entitled to the full benefits payable made under this Agreement; and (ii) If paragraph, including determinations as to whether the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Total Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments to Executive shall be reduced (but not below zero) to the extent necessary so that Safe Harbor Cap and the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is assumptions to be made over time (e.g.utilized in arriving at such determinations, in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made at the Company’s expense by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both mutually acceptable to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Appears in 4 contracts

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

Section 280G. Notwithstanding any other provisions (1) To provide Employee with adequate protection in connection with his ongoing employment with the Company, this Agreement provides Employee with various benefits in the event of this Agreement, or any other plan, arrangement or agreement to termination of Employee’s employment with the contrary, if any Company. If Employee’s employment is terminated following a “change in control” of the payments or Company, within the meaning of Section 280G of the Code, a portion of those benefits provided or to could be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (characterized as Covered Payments”) constitute “excess parachute payments” within the meaning of Section 280G of the Code Code. With respect to issues related to excess parachute payments, the parties have agreed as set forth herein. (2) Anything in this Agreement to the contrary notwithstanding, the payments and would, but distributions by the Company or any other person to or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Section 3.3(cAgreement or otherwise (a “Payment”)) shall be reduced so that no such Payment shall be subject to the excise tax imposed under by 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 would be incurred by Employee with respect to such taxes excise tax (collectivelysuch excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then if the following Company shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on determine that the amount of the Covered Payments which are that Employee would retain on any after-tax, present value basis would be increased as a result of such reduction by $5,000 or more. (3) In the event that a reduction in excess Payments is required pursuant to the immediately preceding paragraph, then, except as provided below with respect to Payments that consist of three times Employee’s “base amount” within health and welfare benefits, the meaning of Section 280(G) of the Code less one dollar (reduction in Payments shall be implemented by determining the “Threshold Amount”)Parachute Payment Ratio” (as defined below) for each Payment and then reducing the Payments in order beginning with the Payment with the highest Parachute Payment Ratio. For Payments with the same Parachute Payment Ratio, are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered such Payments shall be reduced based on the time of payment of such Payments, with amounts being paid furthest in the future being reduced first. For Payments with the same Parachute Payment Ratio and the same time of payment, such Payments shall be reduced on a pro-rata basis (but not below zero) prior to the extent necessary so that the sum of all Covered reducing Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced next in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeeorder for reduction. For purposes of determining this Section, “Parachute Payment Ratio” shall mean a fraction, the numerator of which is the value of the alternative provisions applicable Payment as determined for purposes of Code Section 3.3(c)(ii280G, and the denominator of which is the financial present value of such Parachute Payment, determined at the date such payment is treated as made for purposes of Code Section 280G (the “Valuation Date”). In determining the denominator for purposes of the preceding sentence (1) shall apply, Employee present values shall be deemed to pay Federal income taxes at determined using the highest marginal same discount rate that applies for purposes of Federal income taxation applicable to individuals for discounting payments under Code Section 280G; (2) the calendar year in which financial value of payments shall be determined generally under Q&A 12, 13 and 14 of Treasury Regulation 1.280G-1; and (3) other reasonable valuation assumptions as determined by the determination is to Company shall be madeused. Notwithstanding the foregoing, Payments that consist of health and state welfare benefits shall be reduced after all other Payments, with health and local income taxes at the highest marginal rates of individual taxation welfare Payments being made furthest in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeefuture being reduced first.

Appears in 4 contracts

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

Section 280G. (a) Notwithstanding any other provisions of anything contained in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if (i) to the extent that any payment or distribution of any type to or for the Executive by the Company, any affiliate of the payments Company, any Person who acquires ownership or benefits provided or to be provided by effective control of the Company or its affiliates to Employee ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Code, or for Employee’s benefit any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the Covered Payments”) constitute “parachute payments” (within the meaning of Section 280G of the Code Code), and if (ii) such aggregate would, but for this Section 3.3(c) be subject to if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed under 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 be less than the following shall apply: amount the Executive would receive, after all taxes, if the Executive received aggregate Payments equal (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total as valued under Section 280G of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of Code) to only three times Employeethe Executive’s “base amount” (within the meaning of Section 280(G) 280G of the Code less one dollar (the “Threshold Amount”Code), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount$1.00, then the Covered (iii) such Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payments to be made or benefit to be provided to the sum of all Covered Executive shall be subject to the Excise Tax. If the Payments shall not exceed the Threshold Amount. In such eventare so reduced, the Covered Company shall reduce or eliminate the Payments shall be reduced in the following order: (A) by first reducing or eliminating the portion of the Payments which are not payable in cash payments not (other than that portion of the Payments subject to Section 409A; clause (C) hereof), (B) then by reducing or eliminating cash payments (other than that portion of the Payments subject to Section 409A; clause (C) equity-based payments and acceleration; hereof) and (DC) non-then by reducing or eliminating the portion of the Payments (whether payable in cash forms of benefits. To the extent any payment is or not payable in cash) to which Treasury Regulation Section 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time. (b) It is possible that after the determinations and selections made over time (e.g.pursuant to this Section 8.2 the Executive will receive 280G Benefits that are, in installmentsthe aggregate, etc.either more or less than the amount provided under this Section 8.2 (hereafter referred to as an “Excess Payment” or “Underpayment,” respectively). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then the payments Executive shall be reduced promptly pay an amount equal to the Excess Payment to the Company, together with interest on such amount at the applicable federal rate (as defined in reverse chronological order. The determination as to which and under Section 1274(d) of the alternative provisions of Section 3.3(c)(iiCode) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of from the date of termination, if applicable, or at the Executive’s receipt of such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on Excess Payment until the date of terminationsuch payment. In the event that it is determined (i) by a court or (ii) by the auditor upon request by a Party, net that an Underpayment has occurred, the Company shall promptly pay an amount equal to the Underpayment to the Executive, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the Executive had the provisions of this Section 8.2 not been applied until the maximum reduction in Federal income taxes which could be obtained from deduction date of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeepayment.

Appears in 3 contracts

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

Section 280G. Notwithstanding any other provisions of anything to the contrary in this Agreement, this Section 6 shall apply in the event of (i) a “change in the ownership or any other plan, arrangement or agreement to the contrary, if any effective control” of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to (ii) a “change in the terms ownership of this Agreement or otherwise (“Covered Payments”) constitute “parachute paymentsa substantial portion of the assetsof the Company, each within the meaning of Section 280G of the Code (collectively, an “Excise Tax Event”). If an Excise Tax Event is consummated, and wouldas a result any payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but for this not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and its affiliates will be one dollar ($1.00) less than three times Executive’s “base amount” (as defined in Section 3.3(c280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law Code, or any interest or penalties with respect to such taxes excise tax (collectivelysuch excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), then or (b) paid in full, whichever produces the following shall apply: better net after-tax position to Executive (i) If the Covered Payments, reduced by the sum of (1) the taking into account any applicable Excise Tax and (2) the total any other applicable taxes). The reduction of the Federalpayments and benefits hereunder, stateif applicable, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced made in the following order: (A1) cash by reducing the amounts of any payments or benefits that would not subject to constitute deferred compensation under Section 409A; (B) cash , to the extent necessary to decrease the payments subject to Section 409Athe Excise Tax, as agreed by the Company and Executive; (C2) equity-based next, by reducing, payments or benefits to be paid in cash hereunder and accelerationthat constitute deferred compensation under Section 409A in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time); and (D3) finally, by reducing any non-cash forms of benefits. To the extent any payment is or in-kind benefit to be made over time provided hereunder and that constitute deferred compensation under Section 409A in a similar order to that described in clause (e.g., in installments, etc.2), then the payments shall be reduced in reverse chronological order. The determination as to which whether any such reduction in the amount of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a nationally recognized accounting firm selected by reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (the or its affiliates) used in determining if a Accounting Firm”)parachute payment” exists, which exceeds one dollar ($1.00) less than three times Executive’s base amount, then Executive shall provide detailed supporting calculations both immediately repay such excess to the Company and Employee within 15 business days of upon notification that an overpayment has been made. Nothing in this Section 6 shall require the date of termination, if applicableCompany to be responsible for, or at such earlier time as is reasonably requested by the Company have any liability or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall applyobligation with respect to, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeExecutive’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExcise Tax liabilities.

Appears in 3 contracts

Samples: Employment Agreement (Comtech Telecommunications Corp /De/), Employment Agreement (Comtech Telecommunications Corp /De/), Employment Agreement (Comtech Telecommunications Corp /De/)

Section 280G. Notwithstanding any other provisions of (a) Anything in this Agreement, or any other plan, arrangement or agreement Award Agreement to the contrarycontrary notwithstanding, if in the event that any of the payments compensation, payment or benefits provided or to be provided distribution by the Company or its affiliates to Employee or for Employee’s the benefit of Awardee (the “Payments”), whether paid or payable or distributed or distributable pursuant to the terms of this Award Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and wouldotherwise, but for this Section 3.3(c) would be subject to the excise tax imposed under by 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 (collectivelyCode, the “Excise Tax”), then the following provisions shall apply: (i) i. If the Covered Payments, reduced by the sum of (1A) the Excise Tax and (2B) the total of the Federalfederal, state, and local income and employment taxes payable by Employee Awardee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee Awardee shall be entitled to the full benefits payable under this Award Agreement; and. (ii) . If the Threshold Amount is less than (1x) the Covered Payments, but greater than (2y) the Covered Payments reduced by the sum of (xA) the Excise Tax and (yB) the total of the Federalfederal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments benefits payable under this Award Agreement shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A1) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equityequity awards with performance-based payments and accelerationvesting; and (D2) nonequity awards with time-cash forms of benefitsbased vesting. To the extent any payment is to be made over time (e.g., in installments, etc.)time, then the payments shall be reduced in reverse chronological order. The determination as to which . (b) For the purposes of this Section 8, “Threshold Amount” shall mean three times Awardee’s “base amount” within the meaning of Section 280G(b)(3) of the alternative provisions of Code and the regulations promulgated thereunder less one dollar ($1.00); and “Excise Tax” shall mean the excise tax imposed by Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days 4999 of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be madeCode, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of any interest or penalties incurred by Awardee with respect to such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeeexcise tax.

Appears in 3 contracts

Samples: Restricted Stock Unit Agreement (Citrix Systems Inc), Restricted Stock Unit Agreement (Citrix Systems Inc), Restricted Stock Unit Agreement (Citrix Systems Inc)

Section 280G. Notwithstanding (a) If any other provisions of this Agreement, payment or any other plan, arrangement or agreement benefit (including payments and benefits pursuant to the contrary, if any of the payments or benefits provided or to be provided by Agreement) that Executive would receive in connection with a Change in Control from the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (a Covered PaymentsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code Code, and would, (ii) but for this Section 3.3(c) sentence, be subject to the excise tax imposed under by 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 Company shall cause to be determined, before any amounts of the Transaction Payment are paid to Executive, which of the following shall apply: (i) If two alternative forms of payment would result in Executive’s receipt, on an after-tax basis, of the Covered Payments, reduced by greater amount of Transaction Payments notwithstanding that all or some portion of the sum of Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payments (a “Full Payment”), or (2) payment of only a portion of the Transaction Payments so that Executive receives the largest payment possible without the imposition of the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s a base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold AmountReduced Payment”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of whether to make a Full Payment or a Reduced Payment, the alternative provisions of Section 3.3(c)(ii) Company shall applycause to be taken into account all applicable federal, Employee shall be deemed to pay Federal state, local and foreign income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of terminationrate, net of the maximum reduction in Federal federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the forfeited portion of the Full Payment, and (y) reduction in payments and/or benefits will occur in the manner that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. Notwithstanding the foregoing, if such reduction would result in any portion of the Transaction Payments being subject to penalties pursuant to Section 409A that would not otherwise be subject to such penalties, then the reduction method shall be modified so as to avoid the imposition of penalties pursuant to Section 409A as follows: (A) Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and (B) Transaction Payments that are “deferred compensation” within the meaning of Section 409A shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A. In the event that acceleration of vesting of any equity compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision. (b) The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the Change in Control shall make all determinations required to be made under this Exhibit B. If the professional firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such professional firm required to be made hereunder. (c) The professional firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within a reasonable period after the date on which Executive’s right to a Transaction Payment is triggered or such other time as reasonably requested by the Company or Executive. If the professional firm determines that no Excise Tax is payable with respect to the Transaction Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with detailed supporting calculations of its determinations that no Excise Tax will be imposed with respect to such Transaction Payment. Any determination by good faith determinations of the Accounting Firm professional firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeExecutive. (d) Notwithstanding the foregoing, if the Company is privately held as of immediately prior to a Change in Control and it is deemed necessary by the Company to avoid any potential imposition of the adverse tax results provided for by Sections 280G and 4999 of the Code, then as a further condition to any payment or benefit provided for in the Agreement or otherwise, the Company may require Executive to submit any payment or benefit provided for in the Agreement or from any other source that the Company reasonably determines may constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) for approval by the Company’s stockholders prior to the Closing of the Change in Control in the manner required by the terms of Section 280G(b)(5)(B) of the Code, so that no payments or benefits will be deemed to constitute a “parachute payment” subject to the excise taxes under Sections 280G and 4999 of the Code.

Appears in 3 contracts

Samples: Retention Agreement, Retention Agreement (Docusign Inc), Retention Agreement (Docusign Inc)

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement 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 Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments” payments within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) and would, but for this Section 3.3(c) 9.9, be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total or not be deductible under Section 280G of the FederalCode, state, and local income and employment taxes payable by Employee on then such Covered Payments shall be reduced to the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal is subject to the Threshold AmountExcise Tax, Employee shall be entitled to the full benefits payable under this Agreement; and but only if (ii) If the Threshold Amount is less than (1i) the net amount of such Covered Payments, but greater than as so reduced (2) and after subtracting the Covered Payments reduced by the sum net amount of (x) the Excise Tax and (y) the total of the Federalfederal, state, state and local income and employment taxes on such reduced Covered Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Covered Payments Payments), is greater than or equal to (ii) the net amount of such Covered Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Covered Payments and the amount of the Excise Tax to which Executive would be subject in respect of such unreduced Covered Payments which are in excess and after taking into account the phase out of the Threshold Amount, then the itemized deductions and personal exemptions attributable to such unreduced Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold AmountPayments). In such event, the The Covered Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying this principle, the following order: (A) cash payments not reduction shall be made in a manner consistent with the requirements of Section 409A, to the extent applicable, and where two or more economically equivalent amounts are subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To reduction but payable at different times, such amounts payable at the extent any payment is to be made over later time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeefirst but not below zero.

Appears in 3 contracts

Samples: Executive Employment Agreement (Sprout Social, Inc.), Executive Employment Agreement (Sprout Social, Inc.), Executive Employment Agreement (Sprout Social, Inc.)

Section 280G. Notwithstanding any other provisions provision of this Agreement, the Severance Plan or any other plan, arrangement 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 Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise (the “Covered Payments”) constitute parachute payments” payments within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 9.11, be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local or foreign law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), or not be deductible under Section 280G of the Code, then such Covered Payments shall be reduced to the following shall apply: minimum extent necessary so that no portion of the Covered Payments is subject to the Excise Tax, but only if (i) If the net amount of such Covered Payments, as so reduced by (and after subtracting the sum net amount of (1) the Excise Tax and (2) the total of the Federalforeign, statefederal, state and local income and employment and other taxes payable by Employee on the amount of the such reduced Covered Payments which are in excess and after taking into account any interest or penalties on such taxes and the phase out of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”itemized deductions and personal exemptions attributable to such reduced Covered Payments), are is greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the net amount of such Covered Payments reduced by without such reduction (but after subtracting the sum net amount of (x) the Excise Tax and (y) the total of the Federalforeign, statefederal, state and local income and employment and other taxes on such Covered Payments and the amount of the Excise Tax to which Executive would be subject in respect of such unreduced Covered Payments which are in excess and after taking into account any interest or penalties on such taxes and the phase out of the Threshold Amount, then the itemized deductions and personal exemptions attributable to such unreduced Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold AmountPayments). In such event, the The Covered Payments shall be reduced in a manner that is intended to maximize Executive’s economic position. In applying this principle, the following order: (A) cash payments not reduction shall be made in a manner consistent with the requirements of Section 409A, to the extent applicable, and where two or more economically equivalent amounts are subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To reduction but payable at different times, such amounts payable at the extent any payment is to be made over later time (e.g., in installments, etc.), then the payments shall be reduced first but not below zero. Unless the Company and Executive otherwise agree in reverse chronological order. The writing, any determination as to which of the alternative provisions of required under this Section 3.3(c)(ii) shall apply to Employee 9.11 shall be made by a nationally recognized accounting firm selected an independent tax advisor (not otherwise engaged by the Company within the prior three (3) years) designated by the Company in good faith (the “Accounting FirmIndependent Tax Advisor”), which whose determination shall provide detailed supporting calculations both to be conclusive and binding upon Executive and the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeefor all purposes. For purposes of determining which making the calculations required under this Section 9.11, the Independent Tax Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the alternative provisions of Section 3.3(c)(ii) Code; provided that the Independent Tax Advisor shall apply, Employee shall be deemed to pay Federal income assume that Executive pays all taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxesrate. Any determination by the Accounting Firm shall be binding upon the The Company and EmployeeExecutive shall furnish to the Independent Tax Advisor such information and documents as the Independent Tax Advisor may reasonably request in order to make a determination under this Section 9.11. The Company shall bear all costs that the Independent Tax Advisor may reasonably incur in connection with any calculations contemplated by this Section 9.11.

Appears in 3 contracts

Samples: Executive Employment Agreement (Mister Car Wash, Inc.), Executive Employment Agreement (Mister Car Wash, Inc.), Executive Employment Agreement (Mister Car Wash, Inc.)

Section 280G. Notwithstanding any other provisions of anything in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if in the event that any of the payments payment or benefits provided benefit received or to be provided received by the Company Executive (including any payment or its affiliates to Employee benefit received in connection with a Change of Control or for Employeethe termination of Executive’s benefit employment, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the Covered Total Payments”) constitute would not be deductible (in whole or part) by the Company as a result of Section 280G of the Internal Revenue Code of 1986, as amended (the parachute payments” within Code”), then, to the meaning extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in any such other plan, arrangement or agreement), the portion of the Total Payments that do not constitute deferred compensation within the meaning of Section 409A of the Code shall first be reduced (if necessary, to zero), and wouldall other Total Payments shall thereafter be reduced (if necessary, to zero), with cash payments being reduced before non-cash payments, and payments to be paid last being reduced first; provided, however, that such reduction shall only be made if the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to the amount of such Total Payments without such reduction (but for this Section 3.3(c) be subject to after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under 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 on such unreduced Total Payments). It is possible that, after the determinations and selections made pursuant to such taxes (collectivelythis Section 23, the Executive will receive Total Payments that are, in the aggregate, either more or less than the amount properly determined under this Section 23 (hereafter referred to as an Excise TaxExcess Payment” or “Underpayment, as applicable). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then Executive shall promptly repay the following shall apply: (i) If Excess Payment to the Covered PaymentsCompany, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee together with interest on the amount of Excess Payment at the Covered Payments which are applicable federal rate (as defined in excess of three times Employee’s “base amount” within the meaning of Section 280(G1274(d) of the Code less one dollar (Code) from the “Threshold Amount”)date of Executive’s receipt of such Excess Payment until the date of such repayment. In the event that it is determined by a court or by the accounting firm which was, are greater than or immediately prior to the Change in Control, the Company's independent auditor, upon request of either party, that an Underpayment has occurred, the Company shall promptly pay an amount equal to the Threshold AmountUnderpayment to Executive (but in any event within ten (10) days of such determination), Employee shall be entitled together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the full benefits payable under this Agreement; and (ii) If Executive had the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of this Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of 23 not been applied until the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeepayment.

Appears in 3 contracts

Samples: Employment Agreement (Apyx Medical Corp), Employment Agreement (Apyx Medical Corp), Employment Agreement (BOVIE MEDICAL Corp)

Section 280G. (i) Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if in the event that it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the payments or benefits provided or Code) to be provided by the Company or its affiliates to Employee or for Employee’s the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the Covered PaymentsPAYMENTS) ), would constitute an excess parachute paymentspayment” within the meaning of Section 280G of the Code Code, the Company shall reduce (but not below zero) the aggregate present value of the Payments under this Agreement to the Reduced Amount (as defined below), if reducing the Payments under this Agreement will provide Executive with a greater net after-tax amount than would be the case if no reduction was made. The Payments shall be reduced as described in the preceding sentence only if (A) the net amount of the Payments, as so reduced (and wouldafter subtracting the net amount of federal, state and local income and payroll taxes on the reduced Payments), is greater than or equal to (B) the net amount of the Payments without such reduction (but for after subtracting the net amount of federal, state and local income and payroll taxes on the Payments and the amount of Excise Tax (as defined below) to which Executive would be subject with respect to the unreduced Payments). Only amounts payable under this Section 3.3(c) Agreement shall be reduced pursuant to this subsection (i). The “REDUCED AMOUNT” shall be an amount expressed in present value that maximizes the aggregate present value of Payments under this Agreement without causing any Payment under this Agreement to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code. The term “EXCISE TAX” means the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or Code, together with any interest or penalties imposed with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeeexcise tax. For purposes of determining which the calculations under this SECTION 3.2(d), the severance payments to be made under this Agreement shall be allocated as consideration for the noncompetition covenant under SECTION 2.3 to the maximum extent allowable under Section 280G of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at Code and the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeeregulations thereunder.

Appears in 3 contracts

Samples: Employment Agreement (Contango Oil & Gas Co), Employment Agreement (Contango Oil & Gas Co), Employment Agreement (Contango Oil & Gas Co)

Section 280G. Notwithstanding Anything in this Agreement to the contrary notwithstanding, in the event that any other provisions of this Agreementcompensation, payment, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided distribution by the Company or any of its affiliates to Employee or for Employee’s the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Covered Payments”) constitute parachute payments (parachute payments” Parachute Payments”) within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and would, but for this Section 3.3(c) 5.4, be subject to the excise tax imposed under 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 following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) after payment of the Code less one dollar (the “Threshold Amount”), are greater than or equal Excise Tax to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (1ii) the Covered Payments, but greater than (2) above will the Covered Payments be reduced by to the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess is subject to the Excise Tax (that amount, the “Reduced Amount”). “Net Benefit” shall mean the present value of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum net of all Covered Payments shall not exceed the Threshold Amountfederal, state, local, foreign income, employment and excise taxes. In such eventthe event reduction is required, the Covered Payments shall be reduced by the Company in the following order: (Ai) cash severance payments hereunder to the extent not subject to Section 409A409A of the Code in the reverse order of payment; (Bii) cash payments any other portion of the Covered Payments that are not subject to Section 409A409A of the Code in the reverse order of payment (other than any acceleration of vesting of equity awards); (Ciii) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is Covered Payments that are not subject to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which Section 409A of the alternative provisions Code that arise from the accelerated vesting of equity awards, and; (iv) Covered Payments that are subject to Section 3.3(c)(ii) shall apply 409A of the Code in a manner consistent with Section 409A of the Code. All determinations pursuant to Employee this Section 5.4 shall be made by a nationally recognized accounting firm tax accountants selected by the Company and reasonably acceptable to Executive (the “Accounting FirmAccountants”), which whose determinations shall provide detailed supporting calculations both to be binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at Executive absent manifest error. The Executive shall provide the Accountants with such earlier time information and documents as is the Accountants may reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals request in order for the calendar year in which the determination is Accountants to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeemake their determinations.

Appears in 3 contracts

Samples: Employment Agreement, Employment Agreement (LendingClub Corp), Employment Agreement (LendingClub Corp)

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under 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 following shall apply: (i) i. If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) . If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 2 contracts

Samples: Employment Agreement (Energy Fuels Inc), Employment Agreement (Energy Fuels Inc)

Section 280G. (a) Notwithstanding any other provisions of contrary provision in this Agreement, or if Executive is a “disqualified individual” (as defined in Section 280G of the Code), and the amounts that would otherwise be paid to Executive under this Agreement together with any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or that Executive has a right to receive from the Company and affiliated entities required to be provided by aggregated in accordance with Q/A-10 and Q/A-46 of Treas. Reg. § 1.280G-l (collectively, the Company or its affiliates to Employee or for Employee“Payments”) would constitute a “parachute payment” (as defined in Section 280G of the Code), the Payments shall be either (i) reduced (but not below zero) so that the aggregate present value of such Payments shall be $1.00 less than three times Executive’s benefit pursuant “base amount” (as defined in Section 280G of the Code) (the “Safe Harbor Amount”) and so that no portion of such Payments shall be subject to the terms excise tax imposed by Section 4999 (the “Excise Tax”); or (ii) paid in full, whichever produces the better net after-tax result for Executive (taking into account any applicable Excise Tax and any applicable federal, state and local income and employment taxes). (b) The reduction of Payments, if applicable, shall be made by reducing, first, severance amounts to be paid in cash hereunder in the order in which such payments would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and second, by reducing any other cash payments that would be payable to Executive outside of this Agreement or otherwise which are valued in full for purposes of Code Section 280G in a similar order (“Covered Payments”) constitute “parachute payments” within the meaning last to first), and third, by reducing any equity acceleration hereunder of awards which are valued in full for purposes of Section 280G of the Code and would, but for this Section 3.3(c) be subject in a similar order (last to the excise tax imposed under 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”first), then and finally, by reducing any other Payment in a similar order (last to first). Notwithstanding the following shall apply: (i) If the Covered Paymentsforegoing, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee all such reductions shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are made in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) a manner that complies with Section 409A to the extent necessary so that determined appropriate by the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: Board. (Ac) cash payments not subject to All calculations and determinations under this Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee 11 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeExecutive for all purposes. For purposes of determining which making the calculations and determinations required by this Section 11, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxesCode. Any determination by the Accounting Firm shall be binding upon the The Company and Employeethe 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 11. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

Appears in 2 contracts

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

Section 280G. Notwithstanding any other provisions of anything to the contrary in this Agreement, in the event that any compensation, payment or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided distribution by the Company or its and all affiliates to Employee or for Employee’s the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within otherwise, including but not limited to the meaning of Section 280G acceleration of the Code and exercisability and/or vesting of any equity awards (the “Severance Amounts”), would, but for this Section 3.3(c5(i), constitute an “excess parachute payment” as defined in Section 280G of the Code, the following provisions shall apply: (A) be subject if the Severance Amounts, reduced by the sum of (I) the Excise Tax (as defined below) and (II) the total of the federal, state, and local income and employment taxes payable by Executive on the amount of the Severance Amounts which are in excess of the Threshold Amount (as defined below), are greater than or equal to the excise tax imposed Threshold Amount, Executive shall be entitled to the full benefits payable under Section 4999 of this Agreement, and (ii) if the Code Threshold Amount is less than (or any successor provision theretoA) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes the Severance Amounts, but greater than (collectively, B) the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, Severance Amounts reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federalfederal, state, and local income and employment taxes on the amount of the Covered Payments Severance Amounts which are in excess of the Threshold Amount, then the Covered Payments benefits payable under this Agreement shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments maximum Severance Amounts shall not exceed the Threshold Amount. In such event, For the Covered Payments shall be reduced in the following order: (A) cash payments not subject to purposes of this Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.5(i), then “Threshold Amount” shall mean three (3) times Executive’s “base amount” within the payments meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00), and “Excise Tax” shall be reduced in reverse chronological ordermean the excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by Executive with respect to such excise tax. The determination as to which of the alternative provisions of this Section 3.3(c)(ii5(i) shall apply to Employee Executive shall be made by a nationally recognized accounting firm selected by the Company or one of its affiliates (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of this Section 3.3(c)(ii5(i) shall apply, Employee Executive shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeExecutive’s residence on the date of terminationSeparation Date, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive, absent fraud or manifest error. In addition, notwithstanding anything herein to the contrary, in the event any payments are to be reduced, the reduction shall take place in a manner that produces the greatest economic advantage to Executive (and if reduction of two or more payments produce the same economic advantage they shall be reduced proportionally) but taking into account, as applicable, compliance with Section 409A. In no event shall the Company be liable or responsible for any Excise Tax imposed on Executive; provided, however, that this Section 5(i) shall not be construed to limit the remedies available to Executive in the event that Executive becomes subject to any Excise Tax, in a material amount, as a result of any fraud or error by the Accounting Firm.

Appears in 2 contracts

Samples: Employment Agreement (Bed Bath & Beyond Inc), Employment Agreement (Bed Bath & Beyond Inc)

Section 280G. Notwithstanding any other provisions provision of this Agreement, letter or any other plan, arrangement or agreement to the contrary, if any of in the event that: (a) the aggregate payments or benefits provided or to be provided by the Company or its affiliates to Employee you or for Employee’s your benefit pursuant to the terms of this Agreement letter or otherwise (“Covered Payments”) constitute that are deemed to be “parachute payments” within the meaning of Section 280G of the Code or any successor thereto (“Change of Control Benefits”) would be deemed to include an “excess parachute payment” under Section 280G of the Code (or any successor provision thereto); and (b) if such Change of Control Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three (3) times your “base amount,” as determined in accordance with Section 280G of the Code or (any successor provision thereto); and (i) the Non-Triggering Amount less the product of the aggregate marginal rate of any applicable federal, state and would, but for this Section 3.3(clocal income taxes times the Non-Triggering Amount would be greater than (ii) the aggregate value of the Change of Control Benefits (without such reduction) minus (x) the aggregate amount of tax required to be subject to the excise tax imposed under paid by you thereon by Section 4999 of the Code (or any successor provision thereto) or and any similar excise tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and further minus (y) the total product of the FederalChange of Control Benefits times the aggregate marginal rate of any applicable federal, state, state and local income and employment taxes on taxes; then (d) the amount Change of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments Control Benefits shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Non-Triggering Amount. In such event, the Covered Aggregate Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A409A of the Code; (B) cash payments subject to Section 409A409A of the Code; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 2 contracts

Samples: Employment Agreement (WisdomTree Investments, Inc.), Employment Agreement (WisdomTree Investments, Inc.)

Section 280G. Notwithstanding (a) If any other provisions of payment or benefit (including payments and benefits pursuant to this Agreement, ) that the Executive would receive in connection with a Change of Control or any other plan, arrangement or agreement to transaction (the contrary, if any of the payments or benefits provided or to be provided by “Transaction”) from the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered PaymentsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and would, (ii) but for this Section 3.3(c) sentence, be subject to the excise tax imposed under by 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 Company shall cause to be determined, before any amounts of the Transaction Payment are paid to the Executive, which of the following shall apply: (i) If two alternative forms of payment would result in the Covered PaymentsExecutive’s receipt, reduced by on an after-tax basis, of the sum greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that the Executive receives the largest payment possible without the imposition of the Excise Tax and (2) a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the total Company shall cause to be taken into account the value of the Federalall applicable federal, state, state and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) and the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes computed at the highest applicable marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of terminationrate, net of the maximum reduction in Federal federal income taxes which could be obtained from a deduction of such state and local taxes). Any If a Reduced Payment is made, (x) the Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to the Executive as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment shall be reduced pro rata. (b) Notwithstanding the foregoing, in the event that no stock of the Company is readily tradeable on an established securities market or otherwise (within the meaning of Section 280G of the Code) at the time of the Change of Control of the Company, the Company shall cause a vote of shareholders to be held to approve the portion of the Transaction Payments that equals or exceeds three times (3x) the Executive’s “base amount” (within the meaning of Section 280G of the Code) (the “Excess Parachute Payments”) in accordance with Treas. Reg. §1.280G-1, and the Executive shall cooperate with such vote of shareholders, including the execution of any required documentation subjecting the Executive’s entitlement to all Excess Parachute Payments to such shareholder vote. In the event that the Company does not cause a vote of shareholder to be held to approve all Excess Parachute Payments, the provisions set forth in Section 5.7(a) of this Agreement shall apply. (c) Unless the Executive and the Company otherwise agree in writing, any determination required under this section shall be made in writing by the Accounting Firm Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required by this section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Accountants shall provide detailed supporting calculations to the Company and Employeethe Executive as requested by the Company or the Executive. The Executive and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this section.

Appears in 2 contracts

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

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s 's benefit pursuant to the terms of this Agreement or otherwise ("Covered Payments") constitute "parachute payments" within the meaning of Section 280G of Internal Revenue Code (the Code "Code") and would, but for this Section 3.3(c) be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federalfederal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “'s "base amount" within the meaning of Section 280(G) of the Code less one dollar (the "Threshold Amount"), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s 's residence on the date of termination, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 2 contracts

Samples: Employment Agreement (Energy Fuels Inc), Employment Agreement (Energy Fuels Inc)

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c1(j) be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee Executive on the amount of the Covered Payments which are in excess of three times EmployeeExecutive’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee Executive shall be entitled to the full benefits payable under this Agreement; and. (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii1(j) shall apply to Employee Executive shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee Executive within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeExecutive. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii1(j) shall apply, Employee Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeExecutive’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Appears in 2 contracts

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

Section 280G. Notwithstanding (i) In the event that any other provisions payment received or to be received by the Executive in connection with a Change in Control of the Company or the termination of the Executive’s employment (whether payable pursuant to the terms of this Agreement, Agreement or any other plan, arrangement or agreement to with the contraryCompany, if any person whose actions result in a change in control of the payments or benefits provided or to be provided by the Company or its affiliates to Employee any person affiliated with the Company or for Employee’s benefit pursuant to such person (together with the terms of this Agreement or otherwise (Severance Payment, the Covered Total Payments”, and each a “Payment”)) constitute would be treated as “parachute payments” within the meaning of under Section 280G of the Code and would, but for this Section 3.3(c) section, be subject to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto) or any similar tax imposed by corresponding provisions of state or local law tax laws, or any interest or penalties are incurred by the Executive with respect to such taxes excise tax (collectivelysuch excise tax, together with any such interest and penalties, is hereinafter collectively referred to as (the “Excise Tax”)), then the following prior to making any Total Payments, a calculation shall apply: be made comparing (i) If the Covered PaymentsNet Benefit (as defined below) to the Executive of the Total Payments after payment of the Excise Tax, to (ii) the Net Benefit to the Executive if the Total Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Total Payments be reduced by to the sum minimum extent necessary to ensure that no portion of (1) the Total Payments is subject to the Excise Tax and (2) that amount, the total “Reduced Amount”). “Net Benefit” shall mean the present value of the FederalTotal Payments net of all federal, state, local, foreign income, employment and local income and employment taxes payable by Employee on the amount excise taxes. The reduction of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits amounts payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federalif applicable, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected reducing taxable payments before non-taxable payments, and payments nearest in time before payments later in time, unless an alternative method of reduction is elected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both Executive to the Company and Employee within 15 business days extent consistent with Section 409A of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeCode. For purposes of determining which of reducing the alternative provisions of Section 3.3(c)(iiTotal Payments to the Reduced Amount, only amounts payable under this Agreement (and no other Payments) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeereduced.

Appears in 2 contracts

Samples: Severance Agreement (Meredith Corp), Severance Agreement (Meredith Corp)

Section 280G. Notwithstanding (a) If any other provisions of this Agreement, payment or any other plan, arrangement or agreement benefit (including payments and benefits pursuant to the contrary, if any of the payments or benefits provided or to be provided by Agreement) that Executive would receive in connection with a Change in Control from the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (a Covered PaymentsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Code Code, and would, (ii) but for this Section 3.3(c) sentence, be subject to the excise tax imposed under by 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 Company shall cause to be determined, before any amounts of the Transaction Payment are paid to Executive, which of the following shall apply: (i) If two alternative forms of payment would result in Executive’s receipt, on an after-tax basis, of the Covered Payments, reduced by greater amount of Transaction Payments notwithstanding that all or some portion of the sum of Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payments (a “Full Payment”), or (2) payment of only a portion of the Transaction Payments so that Executive receives the largest payment possible without the imposition of the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s a base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold AmountReduced Payment”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of whether to make a Full Payment or a Reduced Payment, the alternative provisions of Section 3.3(c)(ii) Company shall applycause to be taken into account all applicable federal, Employee shall be deemed to pay Federal state, local and foreign income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of terminationrate, net of the maximum reduction in Federal federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the forfeited portion of the Full Payment, and (y) reduction in payments and/or benefits will occur in the manner that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. Notwithstanding the foregoing, if such reduction would result in any portion of the Transaction Payments being subject to penalties pursuant to Section 409A that would not otherwise be subject to such penalties, then the reduction method shall be modified so as to avoid the imposition of penalties pursuant to Section 409A as follows: (A) Transaction Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Transaction Payments that are not contingent on future events; and (B) Transaction Payments that are “deferred compensation” within the meaning of Section 409A shall be reduced (or eliminated) before Transaction Payments that are not deferred compensation within the meaning of Section 409A. In the event that acceleration of vesting of any equity compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this provision. (b) The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the Change in Control shall make all determinations required to be made under this Exhibit B. If the professional firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such professional firm required to be made hereunder. (c) The professional firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within a reasonable period after the date on which Executive’s right to a Transaction Payment is triggered or such other time as reasonably requested by the Company or Executive. If the professional firm determines that no Excise Tax is payable with respect to the Transaction Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with detailed supporting calculations of its determinations that no Excise Tax will be imposed with respect to such Transaction Payment. Any determination by good faith determinations of the Accounting Firm professional firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeExecutive. (d) Notwithstanding the foregoing, if the Company is privately held as of immediately prior to a Change in Control and it is deemed necessary by the Company to avoid any potential imposition of the adverse tax results provided for by Sections 280G and 4999 of the Code, then as a

Appears in 2 contracts

Samples: Retention Agreement (Docusign Inc), Retention Agreement (Docusign Inc)

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c1(i) be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee Executive on the amount of the Covered Payments which are in excess of three times EmployeeExecutive’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee Executive shall be entitled to the full benefits payable under this Agreement; and. (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii1(j) shall apply to Employee Executive shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee Executive within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeExecutive. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii1(j) shall apply, Employee Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeExecutive’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Appears in 1 contract

Samples: Employment Agreement (TripAdvisor, Inc.)

Section 280G. Notwithstanding If any other provisions of payment or benefit (including payments and benefits pursuant to this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by ) that you would receive in connection with a Change in Control from the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered PaymentsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code (the “Code”), and would, (ii) but for this Section 3.3(c) sentence, be subject to the excise tax imposed under by 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 Company shall cause to be determined, before any amounts of the Transaction Payment are paid to you, which of the following shall apply: (i) If two alternative forms of payment would result in your receipt, on an after-tax basis, of the Covered Payments, reduced by greater amount of the sum Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that you receive the largest payment possible without the imposition of the Excise Tax and (2) a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the total of the FederalCompany shall cause to be taken into account all applicable federal, state, state and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) and the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes computed at the highest applicable marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of terminationrate, net of the maximum reduction in Federal federal income taxes which could be obtained from a deduction of such state and local taxes). Any If a Reduced Payment is made, (x) you shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to you as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment shall be reduced pro rata. Unless you and the Company otherwise agree in writing, any determination required under this paragraph shall be made in writing by the Accounting Firm Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this paragraph, the Accountants may make reasonable assumptions and Employee.approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this paragraph. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this paragraph as well as any costs incurred by you with the Accountants for tax planning under Sections 280G and 4999 of the Code. You will be entitled to the indemnification and liability insurance coverage as described in the indemnification agreement that you entered into with the Company on October 30, 2014 (the “Indemnification Agreement”). 62414929_3

Appears in 1 contract

Samples: Employment Agreement (Paratek Pharmaceuticals, Inc.)

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if (a) If any of the payments or benefits provided received or to be provided received by the Company Employee (including, without limitation, any payment or its affiliates to Employee benefits received in connection with a Change in Control or for the Employee’s benefit termination of employment, whether pursuant to the terms of this Agreement or otherwise any plan, arrangement, or agreement, or otherwise) (all such payments collectively referred to herein as the Covered 280G Payments”) (i) constitute “parachute paymentswithin the meaning of Section 280G of the Code Code, and would, but for this Section 3.3(c(ii) would be subject to the excise tax imposed under by 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 following Employee’s benefits under this Agreement shall apply: be either (iA) If the Covered Paymentsdelivered, reduced by the sum subject to any applicable tax or other withholdings, in full, or (B) delivered, subject to any applicable tax or other withholdings, to such lesser extent as would result in no portion of (1) such benefits being subject to the Excise Tax and (2) the total Tax, whichever of the Federalforegoing amounts, statetaking into account the applicable federal, state and local income and employment taxes payable and the Excise Tax, results in the receipt by Employee Employee, on an after-tax basis, of the greatest amount of the Covered Payments which are in excess benefits, notwithstanding that all or some portion of three times Employee’s “base amount” within the meaning of such benefits may be taxable under Section 280(G) 4999 of the Code less one dollar (Code. In the “Threshold Amount”event that 280G Payments are to be reduced in accordance with this Section 1.3.7(a), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered 280G Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall will be reduced in the following order: (Ai) cash payments not subject to Section 409A409A of the Code; (Bii) cash payments subject to Section 409A409A of the Code; (Ciii) equity-based payments and accelerationoption or other equity award acceleration if applicable; (iv) RSUs if applicable; and (Dv) non-cash noncash forms of benefits. To the extent any such payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced waived in reverse chronological order. The determination as to which of the alternative provisions of . (b) All calculations and determinations under this Section 3.3(c)(ii) shall apply to Employee 1.3.7 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company and agreed to by the Employee (either of which shall be referred to hereinafter as the “Accounting FirmTax Counsel), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and the Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeefor all purposes. For purposes of determining which making the calculations and determinations required by this Section 1.3.7, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Code. The Company and the Employee shall be deemed furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeemake its determinations under this Section 1.3.

Appears in 1 contract

Samples: Employment Agreement (Neptune Wellness Solutions Inc.)

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if (a) If any of the payments or benefits provided received or to be provided received by the Company Executive (including, without limitation, any payment or its affiliates to Employee benefits received in connection with a Change in Control or for Employeethe Executive’s benefit termination of employment, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the Covered 280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and will be subject to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), either (i) if reduction of the amount of the parachute payments by 10% or less will avoid the imposition of the Excise Tax, then such 280G Payments shall be reduced by the minimum amount required so that no amount payable to the Executive will be subject to the Excise Tax, with the cash severance to be reduced first and with any further reductions that may be required to be determined by Tax Counsel (as defined below) in a manner that minimizes the impact to the Executive; or (ii) if (i) does not apply, the Company shall pay to the Executive, no later than ten (10) business days following the Termination Date, an additional amount (the “280G Gross-Up Payment”) equal to the sum of the Excise Tax payable by the Executive on the parachute payments; for purposes of clarity, the 280G Gross-Up Payment is “first level” only, meaning the additional amount paid as 280G Gross-Up Payment will equal the Excise Tax on the Executive’s total excess parachute payments prior to such 280G Gross-Up Payment and will NOT include payment for excise or other taxes that will also be due from the Executive on the 280G Gross-Up Payment. (b) If the Term of this Agreement is extended beyond December 31, 2017, and the Change in Control has not occurred by that date, Section 5.9(a) will no longer apply. In that case, if the 280G Payments constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 5.9, be subject to the excise tax imposed under 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 following such 280G Payments shall apply: (i) If the Covered Payments, be reduced by the sum of (1) minimum amount required so that no amount payable to the Executive will be subject to the Excise Tax (with the cash severance to be reduced first and with any further reductions that may be required to be determined by Tax Counsel (2as defined below) in a manner that minimizes the total of impact to the FederalExecutive) OR at the Executive’s option, state, and local income and employment taxes payable by Employee on she can elect to receive the full amount of the Covered Payments which are 280G Payment and be subject to and responsible for the payment of all taxes of any kind payable thereon, including the Excise Tax. (c) All calculations and determinations under this Section 5.9 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 this Section 5.9, 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 furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in excess of three times Employee’s order to make its determinations under this Section 5.9. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services. (d) The Executive hereby agrees with the Company and any successor thereto to in good faith consider and take steps commonly used to minimize or eliminate any base amountparachute payments” within the meaning of Section 280(G) 280G of the Code less one dollar (the “Threshold Amount”), are greater than or equal if requested to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary do so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of any successor thereto; provided, however, that the alternative provisions of Section 3.3(c)(ii) foregoing language shall applyneither require the Executive to take or not take any specific action in furtherance thereof nor contravene, Employee shall be deemed limit or remove any right or privilege provided to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive under this Agreement.

Appears in 1 contract

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

Section 280G. Notwithstanding any other provisions provision of this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if in the event that: (a) For any event subject to Section 280G(b)(2)(A)(i) of the Code (defined below) occurring on or prior to December 31, 2014: (i) In the event that the aggregate value, as determined for purposes of Section 280G of the Code, of any payments or benefits provided or to be provided of any type by the Company Employer or its affiliates any subsidiary of the Employer to Employee or for Employee’s the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, any other agreement or otherwise (“Covered Payments”) ), would constitute an excess parachute paymentspaymentwithin the meaning of pursuant to Section 280G 4999 of the Code Code, and would, but for this Section 3.3(c) such Payments would be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law Code, or any interest or penalties would be incurred by the Executive with respect to such taxes excise tax (collectivelysuch excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive from the Employer an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of the Excise Tax and all income and employment taxes (and any interest and penalties imposed with respect thereto) imposed upon the Gross Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Any Gross-Up Payment shall be paid by the Employer to the Executive as soon as administratively practicable but in no event later than the earlier of (x) the date such tax under Section 4999 is due to be paid by the Executive (or withheld by the Employer and paid) to the Internal Revenue Service and (y) the end of the Executive’s taxable year following the year in which the Executive remits the Excise Tax to the Internal Revenue Service. (ii) Section 7(a)(i) to the contrary notwithstanding, if it is determined that the Executive is entitled to a Gross-Up Payment but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 7% of the Payments, then the Payments shall applybe reduced to the maximum amount that would not result in the imposition of the Excise Tax (the “Safe Harbor Amount”). If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount and none of the Payments is nonqualified deferred compensation under Section 409A (defined below), then the reduction shall occur in the manner that the Executive elects in writing prior to the date of payment. If any Payment constitutes nonqualified deferred compensation or if the Executive fails to elect an order, then the payments to be reduced shall be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, shall be reduced in the inverse order of when payment would have been made to the Executive, until the reduction is achieved. (iii) The Executive shall notify the Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment (or further payment) by the Employer of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than thirty (30) business days after the Executive is informed in writing of such claim and shall apprise the Employer of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which the Executive gives such notice to the Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is required). If the Employer notifies the Executive prior to the expiration of such period that it desires to contest such claim, the Executive shall cooperate with the Employer in so contesting; provided, that the Employer shall bear and pay directly all reasonable costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax, income and employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (iv) If, after the Executive’s receipt of a Gross-Up Payment, the Executive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates, the Executive shall promptly pay to the Employer the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). (b) For any event subject to Section 280G(b)(2)(A)(i) of the Code occurring after December 31, 2014: (i) If The aggregate payments or benefits to be made or afforded to the Covered Payments, reduced by Executive under the sum of (1) this Agreement or from the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are Employer in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar any other manner (the “Threshold AmountTermination Benefits)) would be deemed to include an “excess parachute payment” under Section 280G of the Code, are greater than or equal to the Threshold Amountany successor thereto, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If such Termination Benefits were reduced to an amount (the Threshold Amount “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than (1) the Covered Paymentsamount that would result in an “excess parachute payment” under Section 280G of the Code, but and the Non-Triggering Amount would be greater than the aggregate value of Termination Benefits (2without such reduction) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on minus the amount of the Covered Payments which are in excess tax required to be paid by Executive thereon by Section 4999 of the Threshold AmountCode, then the Covered Payments Termination Benefits shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall Termination Benefits are not exceed more than the Threshold Non-Triggering Amount. In such eventThe application of said Section 280G, and the Covered Payments allocation of the reduction required by this Section, shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected determined by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeEmployer’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeeauditors.

Appears in 1 contract

Samples: Employment Security Agreement (Apac Customer Services, Inc)

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or any of its affiliates to Employee Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “excess parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and would, but for this Section 3.3(c8, be (x) be nondeductible under Section 280G of the Code and/or (y) subject to the excise tax imposed under Section 4999 of the Code (or any successor provision theretoprovisions applicable to such Sections) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following Covered Payments will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, is subject to the Excise Tax; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided, determined on an after-tax basis after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax). Any reductions hereunder shall applybe made in accordance with Section 409A of the Code and the rules and regulations promulgated thereunder (“Section 409A”) and the following: (A) the payments and benefits that do not constitute nonqualified deferred compensation subject to Section 409A shall be reduced first; and (B) all other payments and benefits shall then be reduced as follows: (iI) If the Covered Payments, cash payments shall be reduced by the sum of (1) the Excise Tax before non-cash payments; and (2II) the total of the Federalpayments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. Any determination required under this Section 8, stateincluding, and local income and employment taxes payable by Employee on the amount of the Covered Payments which but not limited to, whether any payments or benefits are in excess of three times Employee’s or could be base amountparachute payments” within the meaning of Section 280(G) 280G of the Code less one dollar (the “Threshold Amount”)Code, are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced determined by the sum of Board (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcor its designee).), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 1 contract

Samples: Employment Agreement (GTT Communications, Inc.)

Section 280G. (a) Notwithstanding any other provisions of anything contained in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if (i) to the extent that any payment or distribution of the payments or benefits provided or any type to be provided by the Company or its affiliates to Employee or for Employeethe benefit of Xxxxxx by Altimmune, any affiliate thereof, any person or entity who acquires ownership or effective control of Altimmune or ownership of a substantial portion of Altimmune’s benefit pursuant to the terms of this Agreement or otherwise assets (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and the regulations thereunder), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Payments”) constitutes “parachute payments” (within the meaning of Section 280G of the Code), and if (ii) such aggregate Payments would, but for this Section 3.3(c) be subject to if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed under 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 be less than the following shall apply: amount Xxxxxx would receive, after all taxes, if Xxxxxx received aggregate Payments equal (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total as valued under Section 280G of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of Code) to only three times Employee’s Xxxxxx’x “base amount” (within the meaning of Section 280(G) 280G of the Code less one dollar (the “Threshold Amount”Code), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount$1.00, then the Covered (iii) such Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payments to be made or benefit to be provided to Xxxxxx shall be subject to the sum Excise Tax; provided, however, that, solely to the extent applicable, Altimmune shall use its reasonable best efforts to obtain shareholder approval of all Covered the Payments provided for in this Agreement in a manner intended to satisfy requirements of the “shareholder approval” exception to Section 280G of the Code and the regulations promulgated thereunder, such that payment may be made to Xxxxxx of such Payments without the application of an Excise Tax. If the Payments are so reduced, Altimmune shall reduce or eliminate the Payments (x) by first reducing or eliminating the portion of the Payments which are not exceed payable in cash (other than that portion of the Threshold Amount. In such eventPayments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Covered Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time. (b) The determination of whether the Payments shall be reduced as provided in Section 22(a) hereof and the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms amount of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee such reduction shall be made at Altimmune’s expense by a nationally recognized an independent public accounting firm of national reputation selected by the Company Altimmune (the “Accounting Firm”), which . The Accounting Firm shall provide its determination (the “Determination”), together with detailed supporting calculations both and documentation, to the Company Altimmune and Employee Xxxxxx within 15 business ten (10) days after Xxxxxx’x final day of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeeemployment. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by If the Accounting Firm determines that no Excise Tax is payable by Xxxxxx with respect to the Payments, it shall furnish Xxxxxx with an opinion reasonably acceptable to him that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding binding, final and conclusive upon the Company Altimmune and EmployeeXxxxxx.

Appears in 1 contract

Samples: Employment Agreement (Altimmune, Inc.)

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, (A) until September 20, 2017, Section 11(b) of the Prior Agreement shall continue to apply and (B) following September 20, 2017, if any of the payments or benefits provided or to be provided by the Company or its affiliates Affiliates to Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise constitute parachute payments (“Covered Parachute Payments”) constitute “parachute payments” within the meaning of Section 280G (as may be amended or replaced) of the Internal Revenue Code and wouldof 1986, but for this Section 3.3(cas amended (the “Code”) then such Parachute Payments to be made to Executive hereunder shall be payable either (1) in full or (2) as to such lesser amount which would result in no portion of such Parachute Payments being subject to the excise tax imposed under 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 excise tax (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total whichever of the Federalforegoing amounts, statetaking into account the applicable federal, state and local income taxes and employment taxes payable by Employee the Excise Tax, results in Executive’s receipt on an after-tax basis, of the greatest amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full economic benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum notwithstanding that all or some portion of (x) such benefits may be subject to the Excise Tax and (y) the total Tax. If a reduction in Parachute Payments is necessary so that no portion of the FederalParachute Payments is subject to the Excise Tax, statereduction shall occur in the manner that results in the greatest economic benefit to Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. If this Section 10(b)(i) is applied to reduce an amount payable to Executive, and local income and employment taxes on the amount of IRS successfully asserts that, despite the Covered Payments which reduction, Executive has nonetheless received payments that are in excess of the Threshold Amountmaximum amount that could have been paid to him without being subjected to any Excise Tax, then the Covered Payments shall then, unless it would be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by unlawful for the Company (the “Accounting Firm”)to make such a loan or similar extension of credit to Executive, which shall provide detailed supporting calculations both Executive may repay such excess amount to the Company and Employee within 15 business days of though such amount constitutes a loan to Executive made at the date of terminationpayment of such excess amount, if applicable, or bearing interest at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which 120% of the alternative provisions of Section 3.3(c)(iiapplicable federal rate (as determined under section 1274(d) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction Code in Federal income taxes which could be obtained from deduction respect of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeeloan).

Appears in 1 contract

Samples: Employment Agreement (Aerie Pharmaceuticals Inc)

Section 280G. Notwithstanding (1) If it is determined (as hereafter provided) that any other provisions of this Agreement, payment or any other plan, arrangement or agreement distribution by Verso to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, Agreement, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a Covered PaymentsPayment”) constitute “parachute payments” would be subject to the excise tax imposed by Section 4999 of the IRC (or any successor provision thereto) by reason of being contingent on a change in ownership or effective control of Verso or of a substantial portion of the assets of Verso, within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under Section 4999 of the Code IRC (or any successor provision thereto) or to any similar tax imposed by state or local law law, or any interest or penalties with respect to such taxes excise tax (collectivelysuch tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then then, in the following shall apply: event that the after-tax value of all Payments to Employee (i) If such after-tax value to reflect the Covered Payments, reduced by the sum of (1) reduction for the Excise Tax and all federal, state and local income, employment and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to Employee (reflecting a reduction for all such taxes in a like manner) of the Safe Harbor Amount (as defined below), (a) the cash portions of the Payments payable to Employee under this Agreement will be reduced, in the reverse order in which they are due to be paid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to Employee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any other Payments payable to Employee under any other agreements, policies, plans, programs or arrangements will be reduced until the Parachute Value of all Payments paid to Employee, in the aggregate, equals the Safe Harbor Amount. (2) If a reduction in Payments is required pursuant to section 5.2(1), then Payments will first be reduced or eliminated (if and to the total of the Federal, state, and local income and employment taxes payable extent necessary) by Employee reducing any Payment that is treated as contingent on the amount of the Covered change in ownership or control but is not covered by Treas. Reg. Section 1.280G-1 Q/A 24(b) or (c), then from any Payment that is covered by Treas. Reg. Section 1.280G-1 Q/A 24(c), in each case in reverse order beginning with Payments which are to be paid the farthest in excess time from applicable event. All calculations under this section will be determined by a national accounting firm selected by Verso (which may include Verso’s outside auditors) and will be provided to Verso and Employee within 15 days prior to the date on which any Payment is payable to Employee. Verso will pay all costs to obtain and provide such calculations to Employee and Verso. (3) For purposes of three times Employee’s this section 5.2, (a) the term base amountParachute Valueof a Payment will mean the present value (as of the date of the applicable change in ownership or effective control of Verso or of a substantial portion of the assets of Verso, within the meaning of Section 280(G280G of the IRC) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction portion of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.Payment that constitutes a “parachute

Appears in 1 contract

Samples: Severance Agreement (Verso Corp)

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 22 be subject to the excise tax imposed under 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 following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of three times Employee’s the Covered Payments is subject to the Excise Tax. base amountNet Benefitshall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 7 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 1 contract

Samples: Employment Agreement (WillScot Holdings Corp)

Section 280G. Notwithstanding any other provisions of (a) Anything in this Agreement, or any other plan, arrangement or agreement Agreement to the contrarycontrary notwithstanding, if in the event that the amount of any of the payments compensation, payment or benefits provided or to be provided distribution by the Company or its affiliates to Employee or for Employee’s the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of otherwise, calculated in a manner consistent with Section 280G of the Code and wouldthe applicable regulations thereunder (the “Aggregate Payments”), but for this Section 3.3(c) would be subject to the excise tax imposed under by 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”)Code, then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Aggregate Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered of the Aggregate Payments shall be $1.00 less than the amount at which the Executive becomes subject to the excise tax imposed by Section 4999 of the Code; provided that such reduction shall only occur if it would result in the Executive receiving a higher After Tax Amount (as defined below) than the Executive would receive if the Aggregate Payments were not exceed the Threshold Amountsubject to such reduction. In such event, the Covered Aggregate Payments shall be reduced in the following order, in each case, in reverse chronological order beginning with the Aggregate Payments that are to be paid the furthest in time from consummation of the transaction that is subject to Section 280G of the Code: (A1) cash payments not subject to Section 409A409A of the Code; (B2) cash payments subject to Section 409A409A of the Code; (C3) equity-based payments and acceleration; and (D4) non-cash forms of benefits; provided that in the case of all the foregoing Aggregate Payments all amounts or payments that are not subject to calculation under Treas. To the extent any payment is to be made over time Reg. §1.280G-1, Q&A-24(b) or (e.g., in installments, etc.), then the payments c) shall be reduced in reverse chronological orderbefore any amounts that are subject to calculation under Treas. The determination as to which Reg. §1.280G-1, Q&A-24(b) or (c). (b) For purposes of this Section 9 the “After Tax Amount” means the amount of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by Aggregate Payments less all federal, state, and local income, excise and employment taxes imposed on the Executive as a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days result of the date Executive’s receipt of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeAggregate Payments. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall applyAfter Tax Amount, Employee the Executive shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the each applicable state and locality of Employee’s residence on the date of terminationlocality, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. (c) The determination as to whether a reduction in the Aggregate Payments shall be made pursuant to this Section 9 shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”) with the Executive’s consent, which will not be unreasonably withheld. The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. Any determination by the Accounting Firm shall be binding upon the Company and Employeethe Executive absent manifest error. The Company shall bear all costs of such Accounting Firm. The Parties shall cooperate with such Accounting Firm, including, if necessary, to make reasonable compensation calculations under Section 280G by valuing applicable restrictive covenants for such calculations purposes.

Appears in 1 contract

Samples: Executive Employment Agreement (Semler Scientific, Inc.)

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to the Employee or for the Employee’s benefit pursuant to the terms of this Agreement or otherwise ("Covered Payments") constitute "parachute payments" within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 9, be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the minimum extent necessary so to ensure that the sum no portion of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not is subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefitsthe Excise Tax. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee Any such reduction shall be made by a nationally recognized accounting firm selected the Company in its sole discretion consistent with the requirements of Section 409A. (b) If, notwithstanding the initial application of this Section 9, the Internal Revenue Service determines that any Covered Payment constitutes an excess parachute payment (as defined by Section 280G(b) of the Code), this Section 9 will be reapplied based on the Internal Revenue Service's determination, and the Employee will be required to promptly repay the portion of the Covered Payments required to avoid imposition of the Excise Tax together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Employee’s receipt of the excess payments until the date of repayment). (c) Any determination required under this Section 9, including whether any payments or benefits are parachute payments, shall be made by the Company (the “Accounting Firm”), which in its sole discretion. The Employee shall provide detailed supporting calculations both the Company with such information and documents as the Company may reasonably request in order to make a determination under this Section 9. The Company’s determinations shall be final and binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 1 contract

Samples: Restricted Stock Unit Agreement (Allied Esports Entertainment, Inc.)

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employee’s the Executive's benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 23 be subject to the excise tax imposed under 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 following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of three times Employee’s the Covered Payments is subject to the Excise Tax. base amountNet Benefitshall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 7 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 1 contract

Samples: Employment Agreement (WillScot Mobile Mini Holdings Corp.)

Section 280G. Notwithstanding any other provisions of this Letter Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or any of its affiliates to Employee you or for Employee’s your benefit pursuant to the terms of this Letter Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code and the rules and regulations thereunder (“Section 280G”) and would, but for this Section 3.3(c) 13 be subject to the excise tax imposed under Section 4999 of the of the Internal Revenue Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee you on the amount of the Covered Payments which that are in excess of three times Employee’s your “base amount” within the meaning of Section 280(G) of the Code 280G less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee you shall be entitled to the full benefits payable under this Agreement; andto you. (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which that are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) 13 shall apply to Employee you shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee you within 15 fifteen (15) business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeeyou. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) 13 shall apply, Employee you shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s your residence on the date of termination, net of the maximum reduction in Federal income taxes which that could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeeyou.

Appears in 1 contract

Samples: Employment Agreement (TripAdvisor, Inc.)

Section 280G. Notwithstanding (1) If it is determined (as hereafter provided) that any other provisions of this Agreement, payment or any other plan, arrangement or agreement distribution by Verso to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, Agreement, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a Covered PaymentsPayment”) constitute “parachute payments” would be subject to the excise tax imposed by Section 4999 of the IRC (or any successor provision thereto) by reason of being contingent on a change in ownership or effective control of Verso or of a substantial portion of the assets of Verso, within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under Section 4999 of the Code IRC (or any successor provision thereto) or to any similar tax imposed by state or local law law, or any interest or penalties with respect to such taxes excise tax (collectivelysuch tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then then, in the following shall apply: event that the after-tax value of all Payments to Employee (i) If such after-tax value to reflect the Covered Payments, reduced by the sum of (1) reduction for the Excise Tax and all federal, state and local income, employment and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to Employee (reflecting a reduction for all such taxes in a like manner) of the Safe Harbor Amount (as defined below), (a) the cash portions of the Payments payable to Employee under this Agreement will be reduced, in the reverse order in which they are due to be paid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to Employee, in the aggregate, equals the Safe Harbor Amount, and (b) if the reduction of the cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any other Payments payable to Employee under any other agreements, policies, plans, programs or arrangements will be reduced until the Parachute Value of all Payments paid to Employee, in the aggregate, equals the Safe Harbor Amount. (2) If a reduction in Payments is required pursuant to section 5.2(1), then Payments will first be reduced or eliminated (if and to the total of the Federal, state, and local income and employment taxes payable extent necessary) by Employee reducing any Payment that is treated as contingent on the amount of the Covered change in ownership or control but is not covered by Treas. Reg. Section 1.280G-1 Q/A 24(b) or (c), then from any Payment that is covered by Treas. Reg. Section 1.280G-1 Q/A 24(c), in each case in reverse order beginning with Payments which are to be paid the farthest in excess time from applicable event. All calculations under this section will be determined by a national accounting firm selected by Verso (which may include Verso’s outside auditors) and will be provided to Verso and Employee within 15 days prior to the date on which any Payment is payable to Employee. Verso will pay all costs to obtain and provide such calculations to Employee and Verso. (3) For purposes of three times Employee’s this section 5.2, (a) the term base amountParachute Valueof a Payment will mean the present value (as of the date of the applicable change in ownership or effective control of Verso or of a substantial portion of the assets of Verso, within the meaning of Section 280(G280G of the IRC) of the Code less one dollar (the portion of such Payment that constitutes a Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable parachute payment” under this Agreement; and (iiSection 280G(b)(2) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the FederalIRC, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For determined for purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.determining

Appears in 1 contract

Samples: Severance Agreement (Verso Corp)

Section 280G. Notwithstanding A. To the extent that any other provisions payment, benefit or distribution of this Agreement, any type to or for Executive’s benefit by the Company or any other planof its affiliates, arrangement whether paid or agreement to the contrarypayable, if any of the payments or benefits provided or to be provided by the Company provided, or its affiliates to Employee distributed or for Employee’s benefit distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other equity-based awards) (collectively, the Covered Total Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) would be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (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 TaxCode”), then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Total Payments shall be reduced (but not below zero) to the extent necessary so that the sum maximum amount of all Covered the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to be subject to the excise tax imposed by Section 4999 of the Code, but only if the Total Payments so reduced result in Executive receiving a net after tax amount that exceeds the net after tax amount Executive would receive if the Total Payments were not exceed reduced and were instead subject to the Threshold Amountexcise tax imposed on excess parachute payments by Section 4999 of the Code. In Unless Executive shall have given prior written notice to the Company to effectuate a reduction in the Total Payments if such eventa reduction is required, any such notice consistent with the requirements of Section 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Covered Company shall reduce or eliminate the Total Payments shall be reduced in by first reducing or eliminating any cash severance benefits (with the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., furthest in installments, etc.the future being reduced first), then by reducing or eliminating any accelerated vesting of stock options or similar awards, then by reducing or eliminating any accelerated vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Total Payments. The preceding provisions of this Section shall take precedence over the payments shall be provisions of any other plan, arrangement or agreement governing Executive’s rights and entitlements to any benefits or compensation. B. If the Total Payments to Executive are reduced in reverse chronological order. The determination accordance with Section 12(A), as to which a result of the alternative provisions uncertainty in the application of Section 3.3(c)(ii) shall apply 4999 of the Code at the time of the initial reduction under Section 12(A), it is possible that Total Payments to Employee shall be Executive which will not have been made by a nationally recognized accounting firm selected by the Company should have been made (the Accounting FirmUnderpayment”) or that Total Payments to Executive which were made should not have been made (“Overpayment”). If an Underpayment has occurred, which the amount of any such Underpayment shall provide detailed supporting calculations both be promptly paid by the Company to or for the benefit of Executive. In the event of an Overpayment, then Executive shall promptly repay to the Company and Employee within 15 business days the amount of any such Overpayment together with interest on such amount (at the same rate as is applied to determine the present value of payments under Section 280G of the date of terminationCode or any successor thereto), if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on from the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination reimbursable payment was received by Executive to the Accounting Firm shall be binding upon date the Company and Employeesame is repaid to the Company.

Appears in 1 contract

Samples: Employment Agreement (SELLAS Life Sciences Group, Inc.)

Section 280G. Notwithstanding any other provisions of this AgreementOffer Letter, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee you or for Employee’s your benefit pursuant to the terms of this Agreement Offer Letter or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 10 be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee you on the amount of the Covered Payments which are in excess of three times EmployeeExecutive’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee you shall be entitled to the full benefits payable under this Agreement; andOffer Letter. (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.Section

Appears in 1 contract

Samples: Offer of Employment (TripAdvisor, Inc.)

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if (a) If any of the payments or benefits provided received or to be provided received by the Company Employee (including, without limitation, any payment or its affiliates to Employee benefits received in connection with a Change in Control or for the Employee’s benefit termination of employment, whether pursuant to the terms of this Agreement or otherwise any plan, arrangement, or agreement, or otherwise) (all such payments collectively referred to herein as the Covered 280G Payments”) (i) constitute “parachute paymentswithin the meaning of Section 280G of the Code Code, and would, but for this Section 3.3(c(ii) would be subject to the excise tax imposed under by 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 following Employee's benefits under this Agreement shall apply: be either (iA) If the Covered Paymentsdelivered, reduced by the sum subject to any applicable tax or other withholdings, in full, or (B) delivered, subject to any applicable tax or other withholdings, to such lesser extent as would result in no portion of (1) such benefits being subject to the Excise Tax and (2) the total Tax, whichever of the Federalforegoing amounts, statetaking into account the applicable federal, state and local income and employment taxes payable and the Excise Tax, results in the receipt by Employee Employee, on an after-tax basis, of the greatest amount of the Covered Payments which are in excess benefits, notwithstanding that all or some portion of three times Employee’s “base amount” within the meaning of such benefits may be taxable under Section 280(G) 4999 of the Code less one dollar (Code. In the “Threshold Amount”event that 280G Payments are to be reduced in accordance with this Section 1.3.7(a), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered 280G Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall will be reduced in the following order: (Ai) cash payments not subject to Section 409A409A of the Code; (Bii) cash payments subject to Section 409A409A of the Code; (Ciii) equity-based payments and accelerationoption or other equity award acceleration if applicable; (iv) RSUs if applicable; and (Dv) non-cash noncash forms of benefits. To the extent any such payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced waived in reverse chronological order. The determination as to which of the alternative provisions of . (b) All calculations and determinations under this Section 3.3(c)(ii) shall apply to Employee 1.3.7 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company and agreed to by the Employee (either of which shall be referred to hereinafter as the “Accounting FirmTax Counsel), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and the Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeefor all purposes. For purposes of determining which making the calculations and determinations required by this Section 1.3.7, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Code. The Company and the Employee shall be deemed furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeemake its determinations under this Section 1.3.

Appears in 1 contract

Samples: Employment Agreement (Neptune Wellness Solutions Inc.)

Section 280G. [add for each Participant with an Employment Agreement containing a 280G section (usually entitled “Limitation on Payment” and usually around Section 8 or 9 of the Employment Agreement): Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement anything herein to the contrary, if any the Section of the Employment Agreement entitled [“Limitation on Payments”][section title to be confirmed/ updated as appropriate each time a PRSU is awarded] shall apply to this Award. If the Employment Agreement is amended or restated, any successor provision to the “Limitation on Payments” section shall apply. [add for each Participant who does NOT have an Employment Agreement or whose employment agreement does NOT contain a 280G section (usually entitled “Limitation on Payment”): Notwithstanding anything herein to the contrary, in the event that the Performance Units or vesting thereof provided for in this Award Agreement or any severance, change in control-related, or other payments or benefits provided or otherwise payable to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise Participant (“Covered Payments”i) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and would, (ii) but for this Section 3.3(c) 10, would be subject to the excise tax imposed by Section 4999 of the Code, then such payments or benefits will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code (or any successor provision thereto) or any similar Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by state or local law or any interest or penalties with respect to such taxes (collectivelySection 4999, results in the “Excise Tax”)receipt by Participant on an after-tax basis, then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the greatest amount of the Covered Payments which are severance or change in excess control-related, Performance Units or other payments or benefits, notwithstanding that all or some portion of three times Employee’s “base amount” within the meaning of such payments or benefits may be taxable under Section 280(G) 4999 of the Code less one dollar (the Code. If a reduction in severance, Performance Units and/or other payments or benefits constituting Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount parachute payments” is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such eventpayments or benefits are delivered to a lesser extent, the Covered Payments shall be reduced reduction will occur in the following order: (Ai) reduction of cash payments not subject 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 Section 409Abe reduced; (Bii) cash payments subject to Section 409A; reduction of acceleration of vesting of equity awards, which will occur in the reverse order of the date of grant for such stock awards (C) equity-based payments and accelerationi.e., the vesting of the most recently granted stock awards will be reduced first); and (Diii) non-cash forms reduction of benefits. To the extent any payment is other benefits paid or provided to be made over time (e.g.Participant, in installments, etc.), then the payments shall be reduced which will occur in reverse chronological order. The determination as to which order such that the benefit owed on the latest date following the occurrence of the alternative provisions event triggering such excise tax will be the first benefit to be reduced. If more than one equity award was made to Participant on the same date of grant, all such awards will have their acceleration of vesting 6. reduced pro rata. In no event will Participant have any discretion with respect to the ordering of payment reductions. Unless the Company and Participant otherwise agree in writing, any determination required under this Section 3.3(c)(ii) shall apply to Employee shall will be made in writing by a nationally recognized accounting firm of independent public accountants selected by the Company (the “Accounting FirmAccountants”), which shall provide detailed supporting calculations both to whose determination will be conclusive and binding upon Participant and the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeefor all purposes. For purposes of determining which making the calculations required by this Section 10, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxesCode. Any determination by the Accounting Firm shall be binding upon the The Company and EmployeeParticipant will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 10.

Appears in 1 contract

Samples: Performance Unit Award Agreement (TrueCar, Inc.)

Section 280G. Notwithstanding If the Executive becomes entitled to any other provisions amount in the nature of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided compensation payable by the Company that is contingent on a change in ownership, effective control, or its affiliates to Employee or for Employeesubstantial ownership of a substantial portion of the Company’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” assets within the meaning of Section 280G of the Internal Revenue Code (“Covered Payments”) and wouldconstitute “Parachute Payments” within the meaning within the meaning of Section 280G of the Internal Revenue Code of 1986, but for this Section 3.3(c) be as amended (the “Code”), and that is subject to the excise tax imposed under by 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 following a calculation shall apply: be made comparing (i) If the Covered Payments, reduced by Net Benefit (as defined below) to the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) after payment of the Code less one dollar (the “Threshold Amount”), are greater than or equal Excise Tax to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (1ii) the Covered Payments, but greater than (2) above will the Covered Payments be reduced by to the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess is subject to the Excise Tax (that amount, the “Reduced Amount”). “Net Benefit” shall mean the present value of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum net of all Covered Payments shall not exceed the Threshold Amountfederal, state, local, foreign income, employment and excise taxes. In such eventthe event reduction is required, the Covered Payments shall be reduced by the Company in the following order: (Ai) cash severance payments hereunder to the extent not subject to Section 409A409A of the Code in the reverse order of payment; (Bii) cash payments any other portion of the Covered Payments that are not subject to Section 409A409A of the Code in the reverse order of payment (other than any acceleration of vesting of equity awards); (Ciii) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is Covered Payments that are not subject to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which Section 409A of the alternative provisions Code that arise from the accelerated vesting of equity awards, and; (iv) Covered Payments that are subject to Section 3.3(c)(ii) shall apply 409A of the Code in a manner consistent with Section 409A of the Code. All determinations pursuant to Employee this Section 5.4 shall be made by a nationally recognized accounting firm tax accountants selected by the Company and reasonably acceptable to Executive (the “Accounting FirmAccountants”), which whose determinations shall provide detailed supporting calculations both to be binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at Executive absent manifest error. The Executive shall provide the Accountants with such earlier time information and documents as is the Accountants may reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals request in order for the calendar year in which the determination is Accountants to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeemake their determinations.

Appears in 1 contract

Samples: Executive Employment Agreement (Processa Pharmaceuticals, Inc.)

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 23 be subject to the excise tax imposed under 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 following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of three times Employee’s the Covered Payments is subject to the Excise Tax. base amountNet Benefitshall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 7 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 1 contract

Samples: Employment Agreement (WillScot Mobile Mini Holdings Corp.)

Section 280G. (a) Notwithstanding any other provisions of anything contained in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if (i) to the extent that any payment or distribution of any type to or for the Executive by the Company, any affiliate of the payments Company, any Person who acquires ownership or benefits provided or to be provided by effective control of the Company or its affiliates to Employee ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Internal Revenue Code (the “Code”) and the regulations thereunder, or for Employee’s benefit any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the Covered Payments”) constitute “parachute payments” (within the meaning of Section 280G of the Code Code), and if (ii) such aggregate would, but for this Section 3.3(c) be subject to if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed under 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 be less than the following shall apply: amount the Executive would receive, after all taxes, if the Executive received aggregate Payments equal (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total as valued under Section 280G of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of Code) to only three times Employeethe Executive’s “base amount” (within the meaning of Section 280(G) 280G of the Code less one dollar (the “Threshold Amount”Code), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount$1.00, then the Covered (iii) such Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payments to be made or benefit to be provided to the sum of all Covered Executive shall be subject to the Excise Tax. If the Payments shall not exceed the Threshold Amount. In such eventare so reduced, the Covered Company shall reduce or eliminate the Payments shall be reduced in the following order: (A) by first reducing or eliminating the portion of the Payments which are not payable in cash payments not (other than that portion of the Payments subject to Section 409A; clause (C) hereof), (B) then by reducing or eliminating cash payments (other than that portion of the Payments subject to Section 409A; clause (C) equity-based payments and acceleration; hereof) and (DC) non-then by reducing or eliminating the portion of the Payments (whether payable in cash forms or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time. (b) It is possible that after the determinations and selections made pursuant to this Section 7.2 the Executive will receive 280G Benefits that are, in the aggregate, either more or less than the amount provided under this Section 7.2 (hereafter referred to as an “Excess Payment” or “Underpayment,” respectively). If it is established, pursuant to a final determination of benefitsa court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then the Executive shall promptly pay an amount equal to the Excess Payment to the Company, together with interest on such amount at the applicable federal rate (as defined in and under Section 1274(d) of the Code) from the date of the Executive’s receipt of such Excess Payment until the date of such payment. To In the extent event that it is determined (i) by a court or (ii) by the Auditor upon request by a Party, that an Underpayment has occurred, the Company shall promptly pay an amount equal to the Underpayment to the Executive, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the Executive had the provisions of this Section 7.2 not been applied until the date of such payment. (c) Notwithstanding the foregoing, if it appears that any payment amount or benefit that is to be made over time (e.g.paid to the Executive under this Agreement or any other plan, in installmentsprogram, etc.)agreement, then the payments shall be reduced in reverse chronological order. The determination as to which or arrangement of the alternative provisions Company or any of its affiliates may constitute a “parachute payment” under Section 3.3(c)(ii280G(b)(2) shall apply to Employee shall be made by a nationally recognized accounting firm selected by of the Company (the “Accounting Firm”)Code, which shall provide detailed supporting calculations both to the Company and Employee within 15 business days the Executive shall reasonably cooperate to mitigate the effect of Section 280G of the date Code, including seeking to obtain shareholder approval of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For payments for purposes of determining which Section 280G(b)(5) of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeCode.

Appears in 1 contract

Samples: Employment Agreement (Avantor, Inc.)

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code (the “Code”) and would, but for this Section 3.3(c) be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federalfederal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 1 contract

Samples: Employment Agreement (Energy Fuels Inc)

Section 280G. Notwithstanding (i) Whether or not the Executive becomes entitled to any other provisions payments hereunder, if any of the payments, distributions, transfers or benefits received or to be received by the Executive (including any payment or benefits received or to be received in connection with an event described in Section 280G(b)(2)(A) (such event, a "Change in Control") or the Executive's termination of employment or otherwise, whether pursuant to the terms of this Agreement, Agreement or any other plan, arrangement or agreement or otherwise, and including any benefit with respect to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant Executive payable to the terms of this Agreement Executive’s dependents, heirs or otherwise beneficiaries), (“Covered all such payments and benefits, excluding the Gross-Up Payment, being hereinafter referred to as the "Total Payments") constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) is or will be subject (in whole or part) to the excise tax ("the Excise Tax") imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by successor provision or any comparable state or local law or any interest or penalties with respect tax provision, then, subject to such taxes the provisions of subsection (collectivelyii) of this Section 6(g), the “Excise Tax”), then Company shall pay to the following shall apply: Executive an additional amount (ithe "Gross-Up Payment") If such that the Covered Payments, reduced net amount retained by the sum Executive, after deduction of (1) the any Excise Tax on the Total Payments and (2) the total of the Federalany federal, state, state and local income and employment taxes payable by Employee on and Excise Tax upon the amount Gross-Up Payment and all interest, penalties, or addition to tax with respect to such Excise Tax, and after taking into account the phase out of itemized deductions and personal exemptions attributable to the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”)Gross-Up Payment, are greater than or shall be equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Total Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which the amount of the alternative provisions of Section 3.3(c)(ii) shall applyGross-Up Payment, Employee the Executive shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the determination Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of Employee’s the Executive's residence on which the date Gross-Up Payment is calculated for purposes of terminationthis Section 6(g)), net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. (ii) In the event that a reduction of an aggregate amount of not more than $150,000 from the Total Payments to be made to the Executive would result in no portion of the Total Payments being subject to the Excise Tax and would produce a net amount of Total Payments (after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) that would be greater than or equal to the net amount of unreduced Total Payments (after deduction of the net amount of federal, state and local income and employment taxes and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments), then subsection (i) of this Section 6(g) shall not apply and the Total Payments shall be reduced as provided below in this Section 6(g)(ii). Any determination In such event, the amount of the Total Payments shall be reduced, but not by more than $150,000 in the aggregate, such that the amount of the Total Payments is $1 less than the amount that would cause the Total Payments to become subject to the Excise Tax. To effect such reduction, the cash payments shall first be reduced (if necessary, to zero), and the non-cash payments or benefits shall thereafter be reduced (if necessary, to zero) to effect the total amount of such reduction; provided, however, that the Executive may elect to have the non-cash payments and benefits reduced (or eliminated) prior to any reduction of the cash payments and the Executive may otherwise elect which non-cash payments shall be reduced first (to the extent any reduction in non-cash payments is required). (iii) For purposes of initially estimating whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, unless in the opinion of the Company’s tax counsel ("Tax Counsel"), such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (B) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accounting Firm shall be binding upon Company’s independent auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. Prior to the Termination Date, the Company shall provide the Executive with its calculation of the amounts referred to in this Section 6(g)(iii) and Employeesuch supporting materials as are reasonably necessary for the Executive to evaluate the Company's calculations. If the Executive disputes the Company's calculations (in whole or in part), the reasonable opinion of Tax Counsel with respect to the matter in dispute shall prevail for purposes of the initial estimates of any Gross-Up Payment. (iv) In the event that (A) amounts are paid to the Executive pursuant to subsection (i) of this Section 6(g), (B) the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, and (C) after recalculating the Gross Up Payment based on such finally determined Excise Tax, the payments are to be reduced pursuant to subsection (ii) of this Section 6(g), the Executive shall repay to the Company, within thirty (30) business days following the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in (A) no portion of the Total Payments being subject to the Excise Tax and (B) a dollar-for-dollar reduction in the Executive's taxable income and wages for purposes of federal, state and local income and employment taxes) plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that (x) the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment) and (y) after giving effect to such redetermination, the payments should not have been reduced pursuant to subsection (ii) of this Section 6(g), the Company shall make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to such excess and such portion) within five (5) business days following the time that the amount of such excess is finally determined. In addition, it may initially be determined that a Gross-Up Payment need not be made (or no determination with respect to a Gross-Up Payment may be made) or the amount of the Gross-Up Payment may initially be determined to be less than the amount of the Gross-Up Payment that should actually be made. In any such event, the Company shall promptly make an additional Gross-Up Payment to Executive equal to (i) the full Gross-Up Payment that should have been made to Executive less any Gross-Up Payment previously paid to Executive (to the Extent not repaid by the Executive), plus (ii) any interest, penalties or additions to tax payable by the Executive with respect to the underpayment resulting from the original underpayment.

Appears in 1 contract

Samples: Employment Agreement (Panavision Inc)

Section 280G. Notwithstanding In the event that it shall be determined that any other provisions of this Agreement, payment or any other plan, arrangement distribution to or agreement to for the contrary, if any benefit of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of Executive under this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and under any other Company plan, contract or agreement would, but for the effect of this Section 3.3(c) 11(p), be subject to the excise tax imposed under by 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 excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”), then then, at the following shall apply: election of the Executive, in the event that the after-tax value of all Payments (ias defined below) If to the Covered Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, reduced by in the sum aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount (as defined below), (1) the Excise Tax cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the total reduction of the Federalcash portions of the Payments, statepayable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other plans shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and local income and employment taxes payable by Employee on (3) if the amount reduction of all cash portions of the Covered Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in excess the aggregate, equals the Safe Harbor Amount. As used herein, (x) “Payment” shall mean any payment or distribution in the nature of three compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise, (y) “Safe Harbor Amount” shall mean 2.99 times Employeethe Executive’s “base amount,” within the meaning of Section 280(G280G(b)(3) of the Code, and (z) “Parachute Value” of a Payment shall mean the present value as of the date of the Change in Control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code less one dollar (the “Threshold Amount”), are greater than or equal for purposes of determining whether and to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) what extent the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall will apply to Employee such Payment. All calculations under this section shall be made by a nationally recognized accounting firm selected reasonably by the Company (and the “Accounting Firm”), which shall provide detailed supporting calculations both to Company’s outside auditor at the Company Company’s expense and Employee within 15 business days of at the date of termination, if applicable, or at such earlier time as is times reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive.

Appears in 1 contract

Samples: Employment Agreement (Schiff Nutrition International, Inc.)

Section 280G. EXHIBIT 10.1 (a) Notwithstanding any other provisions of anything contained in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if (i) to the extent that any payment or distribution of any type to or for the Executive by the Company, any affiliate of the payments Company, any Person who acquires ownership or benefits provided or to be provided by effective control of the Company or its affiliates to Employee ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Code, or for Employee’s benefit any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the Covered Payments”) constitute “parachute payments” (within the meaning of Section 280G of the Code Code), and if (ii) such aggregate would, but for this Section 3.3(c) be subject to if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed under 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 be less than the following shall apply: amount the Executive would receive, after all taxes, if the Executive received aggregate Payments equal (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total as valued under Section 280G of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of Code) to only three times Employeethe Executive’s “base amount” (within the meaning of Section 280(G) 280G of the Code less one dollar (the “Threshold Amount”Code), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount$1.00, then the Covered (iii) such Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payments to be made or benefit to be provided to the sum of all Covered Executive shall be subject to the Excise Tax. If the Payments shall not exceed the Threshold Amount. In such eventare so reduced, the Covered Company shall reduce or eliminate the Payments shall be reduced in the following order: (A) by first reducing or eliminating the portion of the Payments which are not payable in cash payments not (other than that portion of the Payments subject to Section 409A; clause (C) hereof), (B) then by reducing or eliminating cash payments (other than that portion of the Payments subject to Section 409A; clause (C) equity-based payments and acceleration; hereof) and (DC) non-then by reducing or eliminating the portion of the Payments (whether payable in cash forms of benefits. To the extent any payment is or not payable in cash) to which Treasury Regulation Section 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time. (b) It is possible that after the determinations and selections made over time (e.g.pursuant to this Section 8.2 the Executive will receive 280G benefits that are, in installmentsthe aggregate, etc.either more or less than the amount provided under this Section 8.2 (hereafter referred to as an “Excess Payment” or “Underpayment,” respectively). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then the payments Executive shall be reduced promptly pay an amount equal to the Excess Payment to the Company, together with interest on such amount at the applicable federal rate (as defined in reverse chronological order. The determination as to which and under Section 1274(d) of the alternative provisions of Section 3.3(c)(iiCode) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of from the date of termination, if applicable, or at the Executive’s receipt of such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on Excess Payment until the date of terminationsuch payment. In the event that it is determined (i) by a court or (ii) by the auditor upon request by a Party, net that an Underpayment has occurred, the Company shall promptly pay an amount equal to the Underpayment to the Executive, together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the Executive had the provisions of this Section 8.2 not been applied until the maximum reduction in Federal income taxes which could be obtained from deduction date of such state and local taxespayment. Any determination by the Accounting Firm shall be binding upon the Company and Employee3.

Appears in 1 contract

Samples: Employment Agreement

Section 280G. Notwithstanding If any other provisions of payment or benefit (including payments and benefits pursuant to this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by ) that you would receive in connection with a Change in Control from the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered PaymentsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code (the “Code”), and would, (ii) but for this Section 3.3(c) sentence, be subject to the excise tax imposed under by 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 Company shall cause to be determined, before any amounts of the Transaction Payment are paid to you, which of the following shall apply: (i) If two alternative forms of payment would result in your receipt, on an after-tax basis, of the Covered Payments, reduced by greater amount of the sum Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that you receive the largest payment possible without the imposition of the Excise Tax and (2) a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the total of the FederalCompany shall cause to be taken into account all applicable federal, state, state and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) and the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes computed at the highest applicable marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of terminationrate, net of the maximum reduction in Federal federal income taxes which could be obtained from a deduction of such state and local taxes). Any If a Reduced Payment is made, (x) you shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to you as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment shall be reduced pro rata. Unless you and the Company otherwise agree in writing, any determination required under this paragraph shall be made in writing by the Accounting Firm Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this paragraph, the Accountants may make reasonable assumptions and Employeeapproximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this paragraph. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this paragraph as well as any costs incurred by you with the Accountants for tax planning under Sections 280G and 4999 of the Code. You will be entitled to the indemnification and liability insurance coverage as described in the indemnification agreement that you entered into with the Company on April 10, 2015 (the “Indemnification Agreement”).

Appears in 1 contract

Samples: Employment Agreement (Paratek Pharmaceuticals, Inc.)

Section 280G. (a) Notwithstanding any other provisions of anything in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if in the event that any of the payments payment or benefits provided benefit received or to be provided received by Executive (including any payment or benefit received in connection with a “Change in Control” (as defined in the Company 2005 Plan) or its affiliates to Employee or for Employeethe termination of Executive’s benefit employment, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the Covered Total Payments”) constitute “parachute payments” within would not be deductible (in whole or part) by the meaning Company or any Affiliates making such payment or providing such benefit as a result of Section 280G of the Code, then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), the portion of the Total Payments that do not constitute deferred compensation within the meaning of Section 409A of the Code shall first be reduced (if necessary, to zero), and wouldall other Total Payments shall thereafter be reduced (if necessary, to zero), with cash payments being reduced before non-cash payments, and payments to be paid last being reduced first; provided, however, that such reduction shall only be made if (i) the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (ii) the amount of such Total Payments without such reduction (but for this Section 3.3(c) be subject to after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under 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”) on such unreduced Total Payments). (b) It is possible that, after the determinations and selections made pursuant to Section 7(a) above, Executive will receive 280G Benefits that are, in the aggregate, either more or less than the amount determined under Section 7(a) above (hereafter referred to as an “Excess Payment” or “Underpayment”, as applicable). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then Executive shall promptly repay the following shall apply: Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in Section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. In the event that it is determined (i) If the Covered Paymentsby arbitration pursuant to Section 9(k), reduced (ii) by a court or (iii) by the sum accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor, upon request of (1) either party, that an Underpayment has occurred, the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the Company shall promptly pay an amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold AmountUnderpayment to Executive (but in any event within ten (10) days of such determination), Employee shall be entitled together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the full benefits payable under this Agreement; and (ii) If Executive had the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii7(a) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of not been applied until the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeepayment.

Appears in 1 contract

Samples: Employment Agreement (Aircastle LTD)

Section 280G. Notwithstanding any other provisions of Anything in this Agreement, or any other plan, arrangement or agreement Agreement to the contrarycontrary notwithstanding, if in the event that any of the payments compensation, payment or benefits provided or to be provided distribution by the Company or its and all affiliates to Employee or for Employee’s the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within otherwise, including but not limited to the meaning of Section 280G acceleration of the Code and exercisability and/or vesting of any equity awards (the “Severance Amounts”), would, but for this Section 3.3(c5(i), constitute an “excess parachute payment” as defined in Section 280G of the Code, the following provisions shall apply: (A) be subject if the Severance Amounts, reduced by the sum of (I) the Excise Tax (as defined below) and (II) the total of the federal, state, and local income and employment taxes payable by Executive on the amount of the Severance Amounts which are in excess of the Threshold Amount (as defined below), are greater than or equal to the excise tax imposed Threshold Amount, Executive shall be entitled to the full benefits payable under Section 4999 of this Agreement, and (ii) if the Code Threshold Amount is less than (or any successor provision theretoA) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes the Severance Amounts, but greater than (collectively, B) the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, Severance Amounts reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federalfederal, state, and local income and employment taxes on the amount of the Covered Payments Severance Amounts which are in excess of the Threshold Amount, then the Covered Payments benefits payable under this Agreement shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments maximum Severance Amounts shall not exceed the Threshold Amount. In such event, For the Covered Payments shall be reduced in the following order: (A) cash payments not subject to purposes of this Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.5(i), then “Threshold Amount” shall mean three (3) times Executive’s “base amount” within the payments meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00), and “Excise Tax” shall be reduced in reverse chronological ordermean the excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by Executive with respect to such excise tax. The determination as to which of the alternative provisions of this Section 3.3(c)(ii5(i) shall apply to Employee Executive shall be made by a nationally recognized accounting firm selected by the Company or one of its affiliates (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of this Section 3.3(c)(ii5(i) shall apply, Employee Executive shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeExecutive’s residence on the date of terminationSeparation Date, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeExecutive, absent fraud or manifest error. In addition, notwithstanding anything herein to the contrary, in the event any payments are to be reduced, the reduction shall take place in a manner that produces the greatest economic advantage to Executive (and if reduction of two or more payments produce the same economic advantage they shall be reduced proportionally) but taking into account, as applicable, compliance with Section 409A. In no event shall the Company be liable or responsible for any Excise Tax imposed on Executive; provided, however, that this Section 5(i) shall not be construed to limit the remedies available to Executive in the event that Executive becomes subject to any Excise Tax, in a material amount, as a result of any fraud or error by the Accounting Firm.

Appears in 1 contract

Samples: Employment Agreement (Bed Bath & Beyond Inc)

Section 280G. A. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates or subsidiaries to Employee the Executive or for Employee’s the Executive's benefit pursuant to the terms of this Agreement or otherwise otherwise, including, without limitation, payments in connection with a Change in Control or the vesting of shares of Restricted Stock, RSUs, SARs, stock options or other equity awards or other non-cash benefits or property, whether pursuant to the terms of this Agreement or any other plan, arrangement, or agreement with the Company or any affiliated company (the “Covered Payments”) constitute parachute payments” payments within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 7, be subject to the excise tax imposed under 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 following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) after payment of the Code less one dollar (the “Threshold Amount”), are greater than or equal Excise Tax to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) the Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. If the Threshold Amount amount calculated under subsection (i) of this Section 7(A) is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount under subsection (ii) of the Covered Payments which are in excess of the Threshold Amountthis Section 7(A), then the Covered Payments will be reduced or cut back by the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the “Reduced Amount”). “Net Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. B. Any such reduction shall be made in accordance with Section 409A of the Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (but not below zeroii) to the extent necessary so that the sum of all other Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall then be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.follows:

Appears in 1 contract

Samples: Executive Employment Agreement (Aquestive Therapeutics, Inc.)

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement 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 Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments” payments within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) and would, but for this Section 3.3(c) 8.12, be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total or not be deductible under Section 280G of the FederalCode, state, and local income and employment taxes payable by Employee on then such Covered Payments shall be reduced to the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess is subject to the Excise Tax, but only if (i) the net amount of three times Employee’s “base amount” within such Covered Payments, as so reduced (and after subtracting the meaning net amount of Section 280(G) federal, state and local income |US-DOCS\138580304.4|| and employment taxes on such reduced Covered Payments and after taking into account the phase out of the Code less one dollar (the “Threshold Amount”itemized deductions and personal exemptions attributable to such reduced Covered Payments), are is greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the net amount of such Covered Payments reduced by without such reduction (but after subtracting the sum net amount of (x) the Excise Tax and (y) the total of the Federalfederal, state, state and local income and employment taxes on such Covered Payments and the amount of the Excise Tax to which Executive would be subject in respect of such unreduced Covered Payments which are in excess and after taking into account the phase out of the Threshold Amount, then the itemized deductions and personal exemptions attributable to such unreduced Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold AmountPayments). In such event, the The Covered Payments shall be reduced in a manner that maximizes Employee’s economic position. In applying this principle, the following order: (A) cash payments not reduction shall be made in a manner consistent with the requirements of Section 409A, to the extent applicable, and where two or more economically equivalent amounts are subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To reduction but payable at different times, such amounts payable at the extent any payment is to be made over later time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological orderfirst but not below zero. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.|US-DOCS\138580304.4||

Appears in 1 contract

Samples: Employment Agreement (Funko, Inc.)

Section 280G. a. Notwithstanding any other provisions provision of this Agreementemployment contract, except as set forth in Section (b) below, in the event that the Parent undergoes a “Change in Ownership or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise Control” (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under 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 (collectivelyas defined below), the Employer shall not be obligated to provide the Employee a portion of any Excise Tax”), then Contingent Compensation Payments” (as defined below) that the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall would otherwise be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) receive to the extent necessary so that to eliminate any “excess parachute payments” (as defined in U.S. Internal Revenue Code Section 280G(b)(1)) for the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which this Exhibit B, the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Payments” and the aggregate amount (determined in accordance with US Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the alternative Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Amount.” b. Notwithstanding the provisions of above section (a), no such reduction in Contingent Compensation Payments shall be made if the Eliminated Amount (computed without regard to this sentence) exceeds 100% of the aggregate present value (determined in accordance with US Treasury Regulation Section 3.3(c)(ii1.280G-1, Q/A-31 and Q/A-32 or any successor provisions) if the amount of any additional taxes that would be incurred by the Employee if the Eliminated Payments (determined without regard to this sentence) were paid to the Employee (including, state and federal income taxes on the Eliminated Payments, the excise tax imposed by U.S. Internal Revenue Code Section 4999 payable with respect to all of the Contingent Compensation Payments in excess of your “base amount” (as defined in Section 280G(b)(3) of the U.S. Internal Revenue Code), and any withholding taxes). The override of such reduction in Contingent Compensation Payments pursuant to this Section (b) shall applybe referred to as a “Exhibit B (b) Override.” For purposes of this paragraph, Employee if any federal or state income taxes would be attributable to the receipt of any Eliminated Payment, the amount of such taxes shall be deemed to pay Federal income taxes at computed by multiplying the highest marginal rate amount of Federal income taxation applicable to individuals for the calendar year in which Eliminated Payment by the determination is to be made, maximum combined U.S. federal and state and local income taxes at tax rate provided by law. c. For purposes of this Exhibit B the highest marginal rates of individual taxation in following terms shall have the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.following respective meanings:

Appears in 1 contract

Samples: Employment Agreement (Inozyme Pharma, Inc.)

Section 280G. Notwithstanding If any other provisions of payment or benefit (including payments and benefits pursuant to this Agreement, or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by ) that you would receive in connection with a Change in Control from the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered PaymentsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code (the “Code”), and would, (ii) but for this Section 3.3(c) sentence, be subject to the excise tax imposed under by 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 Company shall cause to be determined, before any amounts of the Transaction Payment are paid to you, which of the following shall apply: (i) If two alternative forms of payment would result in your receipt, on an after-tax basis, of the Covered Payments, reduced by greater amount of the sum Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that you receive the largest payment possible without the imposition of the Excise Tax and (2) a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the total of the FederalCompany shall cause to be taken into account all applicable federal, state, state and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) and the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes computed at the highest applicable marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of terminationrate, net of the maximum reduction in Federal federal income taxes which could be obtained from a deduction of such state and local taxes). Any If a Reduced Payment is made, (x) you shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to you as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment shall be reduced pro rata. Unless you and the Company otherwise agree in writing, any determination required under this paragraph shall be made in writing by the Accounting Firm Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon you and the Company for all purposes. For purposes of making the calculations required by this paragraph, the Accountants may make reasonable assumptions and Employeeapproximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this paragraph. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this paragraph as well as any costs incurred by you with the Accountants for tax planning under Sections 280G and 4999 of the Code. You will be entitled to the indemnification and liability insurance coverage as described in the indemnification agreement that you entered into with the Company on October 30, 2014 (the “Indemnification Agreement”).

Appears in 1 contract

Samples: Employment Agreement (Paratek Pharmaceuticals, Inc.)

Section 280G. (a) Notwithstanding any other provisions of contrary provision in this Agreement, or if Executive is a “disqualified individual” (as defined in Section 280G of the Code), and the amounts that would otherwise be paid to Executive under this Agreement together with any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or that Executive has a right to receive from the Company and affiliated entities required to be provided by aggregated in accordance with Q/A-10 and Q/A-46 of Treas. Reg. § 1.280G-l (collectively, the Company or its affiliates to Employee or for Employee“Payments”) would constitute a “parachute payment” (as defined in Section 280G of the Code), the Payments shall be either (i) reduced (but not below zero) so that the aggregate present value of such Payments shall be $1.00 less than three times Executive’s benefit pursuant “base amount” (as defined in Section 280G of the Code) (the “Safe Harbor Amount”) and so that no portion of such Payments shall be subject to the terms excise tax imposed by Section 4999 (the “Excise Tax”); or (ii) paid in full, whichever produces the better net after-tax result for Executive (taking into account any applicable Excise Tax and any applicable federal, state and local income and employment taxes). (b) The reduction of Payments, if applicable, shall be made by reducing, first, severance amounts to be paid in cash hereunder in the order in which such payments would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and second, by reducing any other cash payments that would be payable to Executive outside of this Agreement or otherwise which are valued in full for purposes of Code Section 280G in a similar order (“Covered Payments”) constitute “parachute payments” within the meaning last to first), and third, by reducing any equity acceleration hereunder of awards which are valued in full for purposes of Section 280G of the Code and would, but for this Section 3.3(c) be subject in a similar order (last to the excise tax imposed under 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”first), then and finally, by reducing any other Payment in a similar order (last to first). Notwithstanding the following shall apply: (i) If the Covered Paymentsforegoing, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee all such reductions shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are made in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) a manner that complies with Section 409A to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected determined appropriate by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and EmployeeBoard.

Appears in 1 contract

Samples: Employment Agreement (Brinker International, Inc)

Section 280G. (a) Notwithstanding any other provisions of anything contained in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if (i) to the extent that any payment or distribution of the payments or benefits provided or any type to be provided by the Company or its affiliates to Employee or for Employeethe benefit of Xxxxxxx by Altimmune, any affiliate thereof, any person or entity who acquires ownership or effective control of Altimmune or ownership of a substantial portion of Altimmune’s benefit pursuant to the terms of this Agreement or otherwise assets (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and the regulations thereunder), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Payments”) constitutes “parachute payments” (within the meaning of Section 280G of the Code), and if (ii) such aggregate Payments would, but for this Section 3.3(c) be subject to if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed under 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 be less than the following shall apply: amount Xxxxxxx would receive, after all taxes, if Xxxxxxx received aggregate Payments equal (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total as valued under Section 280G of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of Code) to only three times Employee’s Xxxxxxx’ “base amount” (within the meaning of Section 280(G) 280G of the Code less one dollar (the “Threshold Amount”Code), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount$1.00, then the Covered (iii) such Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payments to be made or benefit to be provided to Xxxxxxx shall be subject to the sum Excise Tax; provided, however, that, solely to the extent applicable, Altimmune shall use its reasonable best efforts to obtain shareholder approval of all Covered the Payments provided for in this Agreement in a manner intended to satisfy requirements of the “shareholder approval” exception to Section 280G of the Code and the regulations promulgated thereunder, such that payment may be made to Xxxxxxx of such Payments without the application of an Excise Tax. If the Payments are so reduced, Altimmune shall reduce or eliminate the Payments (x) by first reducing or eliminating the portion of the Payments which are not exceed payable in cash (other than that portion of the Threshold Amount. In such eventPayments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Covered Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time. (b) The determination of whether the Payments shall be reduced as provided in Section 22(a) hereof and the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms amount of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee such reduction shall be made at Altimmune’s expense by a nationally recognized an independent public accounting firm of national reputation selected by the Company Altimmune (the “Accounting Firm”), which . The Accounting Firm shall provide its determination (the “Determination”), together with detailed supporting calculations both and documentation, to the Company Altimmune and Employee Xxxxxxx within 15 business ten (10) days after Xxxxxxx’ final day of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeeemployment. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by If the Accounting Firm determines that no Excise Tax is payable by Xxxxxxx with respect to the Payments, it shall furnish Xxxxxxx with an opinion reasonably acceptable to him that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding binding, final and conclusive upon the Company Altimmune and EmployeeXxxxxxx.

Appears in 1 contract

Samples: Employment Agreement (Altimmune, Inc.)

Section 280G. Notwithstanding any other provisions of anything to the contrary in this Agreement, in the event that any compensation, payment or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided distribution by the Company or its and all affiliates to Employee or for Employee’s the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within otherwise, including but not limited to the meaning of Section 280G acceleration of the Code and exercisability and/or vesting of any equity awards (the “Severance Amounts”), would, but for this Section 3.3(c5(i), constitute an “excess parachute payment” as defined in Section 280G of the Code, the following provisions shall apply: (A) be subject if the Severance Amounts, reduced by the sum of (I) the Excise Tax (as defined below) and (II) the total of the federal, state, and local income and employment taxes payable by Executive on the amount of the Severance Amounts which are in excess of the Threshold Amount (as defined below), are greater than or equal to the excise tax imposed Threshold Amount, Executive shall be entitled to the full benefits payable under Section 4999 of this Agreement, and (ii) if the Code Threshold Amount is less than (or any successor provision theretoA) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes the Severance Amounts, but greater than (collectively, B) the “Excise Tax”), then the following shall apply: (i) If the Covered Payments, Severance Amounts reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federalfederal, state, and local income and employment taxes on the amount of the Covered Payments Severance Amounts which are in excess of the Threshold Amount, then the Covered Payments benefits payable under this Agreement shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments maximum Severance Amounts shall not exceed the Threshold Amount. In such event, For the Covered Payments shall be reduced in the following order: (A) cash payments not subject to purposes of this Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.5(i), then “Threshold Amount” shall mean three (3) times Executive’s “base amount” within the payments meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00), and “Excise Tax” shall be reduced in reverse chronological ordermean the excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by Executive with respect to such excise tax. The determination as to which of the alternative provisions of this Section 3.3(c)(ii5(i) shall apply to Employee Executive shall be made by a nationally recognized accounting firm selected by the Company or one of its affiliates (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of this Section 3.3(c)(ii5(i) shall apply, Employee Executive shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeExecutive’s residence on the date of terminationSeparation Date, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.Any

Appears in 1 contract

Samples: Employment Agreement (Bed Bath & Beyond Inc)

Section 280G. Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement 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 Employee Executive or for EmployeeExecutive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments” payments within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) and would, but for this Section 3.3(c) 20, be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total or not be deductible under Section 280G of the FederalCode, state, and local income and employment taxes payable by Employee on then such Covered Payments shall be reduced to the amount minimum extent necessary to ensure that no portion of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal is subject to the Threshold AmountExcise Tax, Employee shall be entitled to the full benefits payable under this Agreement; and but only if (ii) If the Threshold Amount is less than (1i) the net amount of such Covered Payments, but greater than as so reduced (2) and after subtracting the Covered Payments reduced by the sum net amount of (x) the Excise Tax and (y) the total of the Federalfederal, state, state and local income and employment taxes on such reduced Covered Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Covered Payments Payments), is greater than or equal to (ii) the net amount of such Covered Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Covered Payments and the amount of the Excise Tax to which Executive would be subject in respect of such unreduced Covered Payments which are in excess and after taking into account the phase out of the Threshold Amount, then the itemized deductions and personal exemptions attributable to such unreduced Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold AmountPayments). In such event, the The Covered Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying this principle, the following order: (A) cash payments not reduction shall be made in a manner consistent with the requirements of Section 409A, to the extent applicable, and where two or more economically equivalent amounts are subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To reduction but payable at different times, such amounts payable at the extent any payment is to be made over later time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeefirst but not below zero.

Appears in 1 contract

Samples: Executive Employment Agreement (Sprout Social, Inc.)

Section 280G. Notwithstanding (a) If it is determined (as hereafter provided) that any other provisions of this Agreement, payment or any other plan, arrangement or agreement distribution by Verso to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for the benefit of Employee’s benefit , whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a Covered PaymentsPayment”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) would be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) by reason of being contingent on a change in ownership or effective control of Verso or of a substantial portion of the assets of Verso, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law law, or any interest or penalties with respect to such taxes excise tax (collectivelysuch tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then then, in the following shall apply: event that the after-tax value of all Payments to Employee (i) If such after-tax value to reflect the Covered Payments, reduced by the sum of (1) reduction for the Excise Tax and all federal, state and local income, employment and other taxes on such Payments) would, in the aggregate, be less than the after-tax value to Employee (2reflecting a reduction for all such taxes in a like manner) of the Safe Harbor Amount (as defined below), (i) the total cash portions of the FederalPayments payable to Employee under this Agreement shall be reduced, statein the reverse order in which they are due to be paid commencing with the latest such payment, until the Parachute Value (as defined below) of all Payments paid to Employee, in the aggregate, equals the Safe Harbor Amount, and local income and employment taxes payable by Employee on (ii) if the amount reduction of the Covered cash portions of the Payments, payable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to Employee under any other agreements, policies, plans, programs or arrangements shall be reduced, in the reverse order in which they are due to be paid commencing with the latest such payment, until the Parachute Value of all Payments paid to Employee, in excess the aggregate, equals the Safe Harbor Amount, and (iii) if the reduction of three all cash portions of the Payments, payable pursuant to this Agreement or otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paid commencing with the latest such payment, until the Parachute Value of all Payments paid to Employee, in the aggregate, equals the Safe Harbor Amount. All calculations under this section shall be determined by a national accounting firm selected by Verso (which may include Verso’s outside auditors) and shall be provided to Verso and Employee within 15 days prior to the date on which any Payment is payable to Employee. Verso shall pay all costs to obtain and provide such calculations to Employee and Verso. (b) For purposes of this Section 10, (i) the term “Parachute Value” of a Payment shall mean the present value as of the date of the change in ownership or effective control, within the meaning of Section 280G of the Code, of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined for purposes of determining whether and to what extent the Excise Tax will apply to such Payment; and (ii) the term “Safe Harbor Amount” shall mean 2.99 times Employee’s “base amount” within the meaning of Section 280(G280G(b)(3) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcCode.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 1 contract

Samples: Confidentiality and Non Competition Agreement (Verso Paper Corp.)

Section 280G. (a) Notwithstanding any other provisions of anything in this Agreement, or any other plan, arrangement or agreement Agreement to the contrary, if in the event that any of the payments payment or benefits provided benefit received or to be provided received by Executive (including any payment or benefit received in connection with a “Change in Control” (as defined above) or the Company or its affiliates to Employee or for Employeetermination of Executive’s benefit employment, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement) (all such payments and benefits being hereinafter referred to as the Covered Total Payments”) constitute would not be deductible (in whole or part) by the Company or any Affiliates making such payment or providing such benefit as a result of Section 280G of the Code, or subject the Executive to excise taxes under Section 4999 of the Code, then, to the extent necessary to make such portion of the Total Payments deductible or ensure that no portion of any payment or benefit be considered an excess parachute paymentspaymentwithin under Section 280G of the meaning Code (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), the portion of the Total Payments that do not constitute deferred compensation within the meaning of Section 409A of the Code shall first be reduced (if necessary, to zero), and wouldall other Total Payments shall thereafter be reduced (if necessary, to zero), with cash payments being reduced before non-cash payments, and payments to be paid last being reduced first; provided, however, that such reduction shall only be made if (i) the amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than or equal to (ii) the amount of such Total Payments without such reduction (but for this Section 3.3(c) be subject to after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of the excise tax imposed under 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”) on such unreduced Total Payments). (b) It is possible that, after the determinations and selections made pursuant to Section 7(a) above, Executive will receive 280G Benefits that are, in the aggregate, either more or less than the amount determined under Section 7(a) above (hereafter referred to as an “Excess Payment” or “Underpayment”, as applicable). If it is established, pursuant to a final determination of an arbitrator pursuant to Section 9(k), or an Internal Revenue Service proceeding, and any appeal therefrom, that has been finally and conclusively resolved, that an Excess Payment has been made, then Executive shall promptly repay the following shall apply: Excess Payment to the Company, together with interest on the Excess Payment at the applicable federal rate (as defined in Section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. In the event that it is determined (i) If the Covered Paymentsby arbitration pursuant to Section 9(k), reduced or (ii) by the sum accounting firm which was, immediately prior to the Change in Control, the Company’s independent auditor, upon request of (1) either party, that an Underpayment has occurred, the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the Company shall promptly pay an amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold AmountUnderpayment to Executive (but in any event within ten (10) days of such determination), Employee shall be entitled together with interest on such amount at the applicable federal rate from the date such amount would have been paid to the full benefits payable under this Agreement; and (ii) If Executive had the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii7(a) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of not been applied until the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeepayment.

Appears in 1 contract

Samples: Employment Agreement (Greenwich Kahala Aviation Ltd.)

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employeethe Executive’s benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 23 be subject to the excise tax imposed under 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 following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1a) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (b) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (a) above is less than the amount under (b) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of three times Employee’s the Covered Payments is subject to the Excise Tax. base amountNet Benefitshall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 7 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 1 contract

Samples: Employment Agreement (WillScot Mobile Mini Holdings Corp.)

Section 280G. [add for each Participant with an Employment Agreement containing a 280G section (usually entitled “Limitation on Payment” and usually around Section 8 or 9 of the Employment Agreement): Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement anything herein to the contrary, if any the Section of the Employment Agreement entitled [“Limitation on Payments”][section title to be confirmed/ updated as appropriate each time a PRSU is awarded] shall apply to this Award. If the Employment Agreement is amended or restated, any successor provision to the “Limitation on Payments” section shall apply. [add for each Participant who does NOT have an Employment Agreement or whose employment agreement does NOT contain a 280G section (usually entitled “Limitation on Payment”): Notwithstanding anything herein to the contrary, in the event that the Performance Units or vesting thereof provided for in this Award Agreement or any severance, change in control-related, or other payments or benefits provided or otherwise payable to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise Participant (“Covered Payments”i) constitute “parachute payments” within the meaning of Section 280G of the Code Code, and would, (ii) but for this Section 3.3(c) 10, would be subject to the excise tax imposed by Section 4999 of the Code, then such payments or benefits will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code (or any successor provision thereto) or any similar Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by state or local law or any interest or penalties with respect to such taxes (collectivelySection 4999, results in the “Excise Tax”)receipt by Participant on an after-tax basis, then the following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the greatest amount of the Covered Payments which are severance or change in excess control-related, Performance Units or other payments or benefits, notwithstanding that all or some portion of three times Employee’s “base amount” within the meaning of such payments or benefits may be taxable under Section 280(G) 4999 of the Code less one dollar (the Code. If a reduction in severance, Performance Units and/or other payments or benefits constituting Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount parachute payments” is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such eventpayments or benefits are delivered to a lesser extent, the Covered Payments shall be reduced reduction will occur in the following order: (Ai) reduction of cash payments not subject payments, which will occur in reverse chronological order such that the cash payment owed on the latest date 5. following the occurrence of the event triggering such excise tax will be the first cash payment to Section 409Abe reduced; (Bii) cash payments subject to Section 409A; reduction of acceleration of vesting of equity awards, which will occur in the reverse order of the date of grant for such stock awards (C) equity-based payments and accelerationi.e., the vesting of the most recently granted stock awards will be reduced first); and (Diii) non-cash forms reduction of benefits. To the extent any payment is other benefits paid or provided to be made over time (e.g.Participant, in installments, etc.), then the payments shall be reduced which will occur in reverse chronological order. The determination as to which order such that the benefit owed on the latest date following the occurrence of the alternative provisions event triggering such excise tax will be the first benefit to be reduced. If more than one equity award was made to Participant on the same date of grant, all such awards will have their acceleration of vesting reduced pro rata. In no event will Participant have any discretion with respect to the ordering of payment reductions. Unless the Company and Participant otherwise agree in writing, any determination required under this Section 3.3(c)(ii) shall apply to Employee shall will be made in writing by a nationally recognized accounting firm of independent public accountants selected by the Company (the “Accounting FirmAccountants”), which shall provide detailed supporting calculations both to whose determination will be conclusive and binding upon Participant and the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employeefor all purposes. For purposes of determining which making the calculations required by this Section 10, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxesCode. Any determination by the Accounting Firm shall be binding upon the The Company and EmployeeParticipant will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 10.

Appears in 1 contract

Samples: Performance Unit Award Agreement (TrueCar, Inc.)

Section 280G. Notwithstanding In the event that it shall be determined that any other provisions of this Agreement, payment or any other plan, arrangement or agreement distribution to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s the benefit pursuant to the terms of Executive under this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and under any other Company plan, contract or agreement would, but for the effect of this Section 3.3(c) 7.16, be subject to the excise tax imposed under by 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 excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”), then then, at the following shall apply: election of Executive, in the event that the after-tax value of all Payments (ias defined below) If to Executive (such after-tax value to reflect the Covered deduction of the Excise Tax and all income or other taxes on such Payments) would, reduced by in the sum aggregate, be less than the after-tax value to Executive of the Safe Harbor Amount (as defined below), (1) the Excise Tax cash portions of the Payments payable to Executive under this Agreement shall be reduced, in the order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the total reduction of the Federalcash portions of the Payments, statepayable under this Agreement, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to Executive under any other plans shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in the aggregate, equals the Safe Harbor Amount, and local income and employment taxes payable by Employee on (3) if the amount reduction of all cash portions of the Covered Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to Executive, in excess the aggregate, equals the Safe Harbor Amount. As used herein, (x) “Payment” shall mean any payment or distribution in the nature of three times Employee’s “base amount” compensation (within the meaning of Section 280(G280G(b)(2) of the Code less one dollar (Code) to or for the “Threshold Amount”)benefit of Executive, are greater than whether paid or equal payable pursuant to the Threshold Amountthis Agreement or otherwise, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.Safe Harbor

Appears in 1 contract

Samples: Employment Agreement (e.l.f. Beauty, Inc.)

Section 280G. Notwithstanding In the event that it shall be determined that any other provisions of this Agreement, payment or any other plan, arrangement distribution to or agreement to for the contrary, if any benefit of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of Executive under this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and under any other Company plan, contract or agreement would, but for the effect of this Section 3.3(c) 11(p), be subject to the excise tax imposed under by 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 excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”), then in the following shall apply: event that the after-tax value of all Payments (ias defined below) If to the Covered Executive (such after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, reduced by in the sum aggregate, be less than the after-tax value to the Executive of the Safe Harbor Amount (as defined below), (1) the Excise Tax cash portions of the Payments payable to the Executive under this Agreement shall be reduced, in the reverse order in which they are due to be paid, until the Parachute Value (as defined below) of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and (2) if the total reduction of the Federalcash portions of the Payments, statepayable under this Agreement, to zero (0) would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Executive under any other plans shall be reduced, in the reverse order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and local income and employment taxes payable by Employee on (3) if the amount reduction of all cash portions of the Covered Payments, payable pursuant to this Agreement and otherwise, to zero (0) would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be reduced, in the reverse order in which they are due to be paid, until the Parachute Value of all Payments paid to the Executive, in excess the aggregate, equals the Safe Harbor Amount. As used herein, (x) “Payment” shall mean any payment or distribution in the nature of three compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise, (y) “Safe Harbor Amount” shall mean 2.99 times Employeethe Executive’s “base amount,” within the meaning of Section 280(G280G(b)(3) of the Code, and (z) “Parachute Value” of a Payment shall mean the present value as of the date of the Change in Control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code less one dollar (the “Threshold Amount”), are greater than or equal for purposes of determining whether and to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) what extent the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall will apply to Employee such Payment. All calculations under this section shall be made reasonably by a nationally recognized such accounting or consulting firm as selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to mutual agreement of the Company and Employee within 15 business days of the date of terminationExecutive , if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of EmployeeCompany’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeeexpense.

Appears in 1 contract

Samples: Employment Agreement (Renewable Energy Group, Inc.)

Section 280G. Notwithstanding (a) If any other provisions of payment or benefit (including payments and benefits pursuant to this Agreement, ) that the Executive would receive in connection with a Change of Control or any other plan, arrangement or agreement to transaction (the contrary, if any of the payments or benefits provided or to be provided by “Transaction”) from the Company or its affiliates to Employee or for Employee’s benefit pursuant to the terms of this Agreement or otherwise (“Covered PaymentsTransaction Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and would, (ii) but for this Section 3.3(c) sentence, be subject to the excise tax imposed under by 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 Company shall cause to be determined, before any amounts of the Transaction Payment are paid to the Executive, which of the following shall apply: (i) If two alternative forms of payment would result in the Covered PaymentsExecutive’s receipt, reduced by on an after-tax basis, of the sum greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that the Executive receives the largest payment possible without the imposition of the Excise Tax and (2) a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the total Company shall cause to be taken into account the value of the Federalall applicable federal, state, state and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) and the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes computed at the highest applicable marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of terminationrate, net of the maximum reduction in Federal federal income taxes which could be obtained from a deduction of such state and local taxes). Any determination by If a Reduced Payment is made, (x) the Accounting Firm Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to the Executive as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment shall be binding upon reduced pro rata. (b) Notwithstanding the foregoing, in the event that no stock of the Company and Employee.is readily tradeable on an established securities market or otherwise (within the meaning of Section 280G of the Code) at the time of the Change of Control of the Company, the Company shall cause a vote of shareholders to be held to approve the portion of the Transaction

Appears in 1 contract

Samples: Employment Agreement (Myovant Sciences Ltd.)

Section 280G. (ii) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employee’s the Executive's benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 23 be subject to the excise tax imposed under 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 following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of three times Employee’s the Covered Payments is subject to the Excise Tax. base amountNet Benefitshall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 7 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 1 contract

Samples: Employment Agreement (WillScot Mobile Mini Holdings Corp.)

Section 280G. Notwithstanding any other provisions of this Agreement, or any other plan, arrangement or agreement to the contrary, if (a) If any of the payments or benefits provided received or to be provided received by the Company Executive (including, without limitation, any payment or its affiliates to Employee benefits received in connection with a Change in Control or for Employeethe Executive’s benefit termination of employment, whether pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the Covered 280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and will be subject to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (the “Gross-Up Payment”) in an amount such that, after payment by the Executive of all taxes except for those imposed by Section 409A(b)(5) of the Code, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) Notwithstanding the foregoing provisions of Section 5.9(a), if it shall be determined that the Executive is entitled to the Gross-Up Payment under Section 5.9(a), but that the total parachute payments do not exceed 3.3 times the Executive’s “base amount” within the meaning of Code Section 280G(b)(3), then no Gross-Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the parachute payments, in the aggregate, equal 2.99 times the Executive’s “base amount” within the meaning of Code Section 280G(b)(3). The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash severance reduced first and then any further reductions that may be required to be determined by Tax Counsel (as defined below) in a manner that minimizes the impact to the Executive. Only amounts payable under this Agreement shall be reduced. (c) If the Term of this Agreement is extended beyond December 31, 2019, and the Change in Control has not occurred by that date, Section 5.9(a) will no longer apply. In that case, if the 280G Payments constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 5.9, be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, state, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are in excess of three times Employee’s “base amount” within the meaning of Section 280(G) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered such 280G Payments shall be reduced (but not below zero) by the minimum amount required so that no amount payable to the extent necessary so Executive will be subject to the Excise Tax (with the cash severance to be reduced first and with any further reductions that may be required to be determined by Tax Counsel (as defined below) in a manner that minimizes the sum impact to the Executive) OR at the Executive’s option, he can elect to receive the full amount of the 280G Payment and be subject to and responsible for the payment of all Covered Payments shall not exceed taxes of any kind payable thereon, including the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: Excise Tax. (Ad) cash payments not subject to All calculations and determinations under this Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee 5.9 shall be made by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company (the “Accounting FirmTax Counsel), which ) whose determinations shall provide detailed supporting calculations both to be conclusive and binding on the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or EmployeeExecutive for all purposes. For purposes of determining which 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 Section 280G and Section 4999 of the alternative provisions Code. The Company 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 Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services. (e) The Company’s obligations under this Section shall not be conditioned upon the Executive’s termination of Section 3.3(c)(ii) shall applyemployment. By way of example, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality event of Employeea Change in Control that does not result in Executive’s residence on termination of employment or entitlement to severance benefits under this Agreement, but which causes the date accelerated vesting of terminationany shares of restricted stock, net of stock options or other awards issued to the maximum reduction in Federal income taxes which could be obtained from deduction of Executive under the 2012 Bankwell Financial Group, Inc. Stock Plan or any successor plan giving rise to an Excise Tax, the Company’s obligations under this Section shall apply with respect to such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employeeaccelerated vesting.

Appears in 1 contract

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

Section 280G. Notwithstanding (a) In the event any other provisions of this Agreement, payment or any other plan, arrangement or agreement benefit arising in connection with Executive’s services to the contraryCorporation, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit whether payable pursuant to the terms of this Agreement or otherwise (the Covered Payment”) is an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Corporation shall pay Executive an additional cash payment (the “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes, including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, Executive shall retain an amount equal to the Excise Tax imposed upon the Payment and the Gross-Up Payment. (b) For purposes of determining whether any of the Payments and Gross-Up Payment (collectively the “Total Payments”) constitute will be subject to the Excise Tax and the amount of such Excise Tax, (i) the Total Payments shall be treated as “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under 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 following shall apply: (i) If the Covered Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the Federal, stateCode, and local income and employment taxes payable by Employee on the amount of the Covered Payments which are all “parachute payments” in excess of three times Employee’s the “base amount” (as defined under Section 280G of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Accountants (as defined in Section 5(c)), such Total Payments (in whole or in part): (1) do not constitute “parachute payments,” including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1, Q&A 33, (2) represent reasonable compensation for services actually rendered within the meaning of Section 280(G280G(b)(4) of the Code less one dollar (the “Threshold Amount”), are greater than or equal to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced “base amount” or (but not below zero3) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments are otherwise not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; the Excise Tax, and (Dii) the value of any non-cash forms of benefits. To the extent benefits or any deferred payment is to be made over time (e.g., in installments, etc.), then the payments or benefit shall be reduced determined by the Accountants in reverse chronological order. The determination as to which accordance with the principles of Section 280G of the alternative provisions of Section 3.3(c)(iiCode. (c) shall apply to Employee All determinations hereunder shall be made by a nationally recognized United States public accounting firm selected by the Company Corporation and approved by Executive (which approval shall not be unreasonably withheld) (the “Accounting FirmAccountants), ) which shall provide detailed supporting calculations both to the Company Corporation and Employee within 15 business days Executive at such time as it is requested by the Corporation or Executive. The determination of the date Accountants shall be final and binding upon the Corporation and Executive. The Corporation shall be responsible for all charges of terminationthe Accountants. (d) The federal tax returns filed by Executive (and any filing made by a consolidated tax group which includes the Corporation) shall be prepared and filed on a basis consistent with the determination of the Accountants with respect to the Excise Tax payable by Executive. Executive shall make proper payment of the amount of any Excise Tax, if applicableand at the request of the Corporation, or at provide to the Corporation true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such earlier time as is other documents reasonably requested by the Company Corporation, evidencing such payment (provided that Executive may delete information unrelated to the Payment or EmployeeExcise Tax and provided, further that the Corporation at all times shall treat such returns as confidential and use such return only for purpose contemplated by this paragraph). For purposes In the event that the Excise Tax is subsequently determined by the Accountants or the Internal Revenue Service to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, Executive shall repay to the Corporation, at the time that the amount of determining which such reduction in Excise Tax is finally determined, the portion of the alternative provisions prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 3.3(c)(ii1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event that any portion of the Gross-Up Payment to be refunded to the Corporation has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall applynot be required until actual refund or credit of such portion has been made to Executive, Employee and interest payable to the Corporation shall not exceed the interest received or credited to Executive by such tax authority for the period it held such portion. Executive and the Corporation shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if Executive’s claim for refund or credit is denied. The Corporation and Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 5. (e) In the event that the Excise Tax is later determined by the Accountants 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 Corporation shall make an additional Gross-Up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) promptly after the amount of such excess is finally determined. (f) The Gross-Up Payment shall be deemed paid not later than the sixtieth day following an event which subjects Executive to the Excise Tax; provided, however, that if the amount of such Gross-Up Payment or portion thereof cannot be finally determined on or before such day, the Corporation shall pay Federal income taxes to Executive on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the highest marginal rate provided in Section 1274(b)(2)(B) of Federal the Code, subject to further payments pursuant to Section 5(e) above, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth day after the occurrence of the event subjecting Executive to the Excise Tax. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, subject to Sections 5(d) and 5(h), such excess shall constitute a loan by the Corporation to Executive, payable on the fifth day after demand by the Corporation (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (g) In the event of any controversy with the Internal Revenue Service (or other taxing authority) with regard to the Excise Tax, Executive shall permit the Corporation to control issues related to the Excise Tax (at its expense), provided that such issues do not potentially materially adversely affect Executive but Executive shall control any other issues. In the event that the issues are interrelated, Executive and the Corporation shall in good faith cooperate so as not to jeopardize resolution of either issue. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxation applicable taxes, Executive shall permit the representative of the Corporation to individuals for accompany Executive, and Executive and his representative shall cooperate with the Corporation and its representative. (h) Nothing in this Section 5 is intended to violate the Xxxxxxxx-Xxxxx Act of 2002 and to the extent that any advance or repayment obligation hereunder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to Executive and the repayment obligation null and void. Notwithstanding the foregoing, any payment or reimbursement made pursuant to this Section 5 shall be paid to Executive promptly and in no event later than the end of the calendar year next following the calendar year in which the determination related tax is paid by Executive, or, where no taxes are required to be maderemitted, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net end of the maximum reduction calendar year following the calendar year in Federal income taxes which could be obtained from deduction the audit is completed or there is a final and nonappealable settlement or other resolution of such state the litigation. The provisions of this Section 5 shall survive the termination of Executive’s employment with the Corporation for any reason and local taxes. Any determination by the Accounting Firm any amount payable under this Section 5 shall be binding upon subject to the Company and Employeeprovisions of Section 6 below.

Appears in 1 contract

Samples: Employment Agreement (Del Monte Corp)

Section 280G. Notwithstanding (1) If it is determined (as hereafter provided) that any other provisions of this Agreement, payment or any other plan, arrangement or agreement distribution by Verso to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Employee or for Employee’s benefit benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, Agreement, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a Covered PaymentsPayment”) constitute “parachute payments” would be subject to the excise tax imposed by Section 4999 of the IRC (or any successor provision thereto) by reason of being contingent on a change in ownership or effective control of Verso or of a substantial portion of the assets of Verso, within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) be subject to the excise tax imposed under Section 4999 of the Code IRC (or any successor provision thereto) or to any similar tax imposed by state or local law law, or any interest or penalties with respect to such taxes excise tax (collectivelysuch tax or taxes, together with any such interest or penalties, are hereafter collectively referred to as the “Excise Tax”), then then, in the following shall apply: event that the after-tax value of all Payments to Employee (i) If such after-tax value to reflect the Covered Payments, reduced by the sum of (1) reduction for the Excise Tax and (2) the total of the Federalall federal, state, state and local income income, employment and employment other taxes payable by on such Payments) would, in the aggregate, be less than the after-tax value to Employee on the amount of the Covered Payments which are (reflecting a reduction for all such taxes in excess of three times Employee’s “base amount” within the meaning of Section 280(Ga like manner) of the Code less one dollar Safe Harbor Amount (the “Threshold Amount”as defined below), (a) the cash portions of the Payments payable to Employee under this Agreement will be reduced, in the reverse order in which they are greater than or equal due to be paid commencing with the Threshold latest such payment, until the Parachute Value (as defined below) of all Payments paid to Employee, in the aggregate, equals the Safe Harbor Amount, Employee shall be entitled to and (b) if the full benefits reduction of the cash portions of the Payments, payable under this Agreement; and, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any other Payments payable to Employee under any other agreements, policies, plans, programs or arrangements will be reduced until the Parachute Value of all Payments paid to Employee, in the aggregate, equals the Safe Harbor Amount. (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) If a reduction in Payments is required pursuant to section 5.2(1), then Payments will first be reduced or eliminated (if and to the Covered Payments reduced extent necessary) by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes reducing any Payment that is treated as contingent on the amount of the Covered change in ownership or control but is not covered by Treas. Reg. Section 1.280G-1 Q/A 24(b) or (c), then from any Payment that is covered by Treas. Reg. Section 1.280G-1 Q/A 24(c), in each case in reverse order beginning with Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over paid the farthest in time (e.g., in installments, etc.), then the payments shall from applicable event. All calculations under this section will be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made determined by a nationally recognized national accounting firm selected by the Company Verso (the “Accounting Firm”), which shall provide detailed supporting calculations both may include Verso’s outside auditors) and will be provided to the Company Verso and Employee within 15 business days prior to the date on which any Payment is payable to Employee. Verso will pay all costs to obtain and provide such calculations to Employee and Verso. (3) For purposes of this section 5.2, (a) the term “Parachute Value” of a Payment will mean the present value (as of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.VERSO SEVERANCE AGREEMENT – X. XXXXXX

Appears in 1 contract

Samples: Severance Agreement (Verso Corp)

Section 280G. (a) Notwithstanding any other provisions provision of this Agreement, Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company Employer or its affiliates to Employee the Executive or for Employee’s the Executive's benefit pursuant to the terms of this Agreement or otherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 3.3(c) 23 be subject to the excise tax imposed under 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 following shall apply: (i) If prior to making the Covered Payments, reduced by the sum of a calculation shall be made comparing (1i) the Excise Tax and Net Benefit (2as defined below) to the total of the Federal, state, and local income and employment taxes payable by Employee on the amount Executive of the Covered Payments which after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are in excess limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of three times Employee’s the Covered Payments is subject to the Excise Tax. base amountNet Benefitshall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. The calculation shall take into consideration all available exemptions, including to what extent (if any) to what extent (if any) such payment or benefits or portions thereof may properly be treated as “reasonable compensation for personal services rendered” by the Executive before, or after, the Change of Control, within the meaning of Code Section 280(G280G(b)(4) and the regulations issued thereunder, including, without limitation, the valuation of the Code less one dollar (the “Threshold Amount”), are greater than or equal Executive’s obligations under Section 7 hereof and any other covenants to the Threshold Amount, Employee shall be entitled to the full benefits payable under this Agreement; and (ii) If the Threshold Amount is less than (1) the Covered Payments, but greater than (2) the Covered Payments reduced by the sum of (x) the Excise Tax and (y) the total of the Federal, state, and local income and employment taxes on the amount of the Covered Payments which are in excess of the Threshold Amount, then the Covered Payments shall be reduced (but not below zero) to the extent necessary so that the sum of all Covered Payments shall not exceed the Threshold Amount. In such event, the Covered Payments shall be reduced in the following order: (A) cash payments not subject to Section 409A; (B) cash payments subject to Section 409A; (C) equity-based payments and acceleration; and (D) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcrefrain from performing services.), then the payments shall be reduced in reverse chronological order. The determination as to which of the alternative provisions of Section 3.3(c)(ii) shall apply to Employee shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Employee. For purposes of determining which of the alternative provisions of Section 3.3(c)(ii) shall apply, Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and Employee.

Appears in 1 contract

Samples: Employment Agreement (WillScot Mobile Mini Holdings Corp.)