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Common use of Section 280G Clause in Contracts

Section 280G. Notwithstanding any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person or entity are considered “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Appears in 19 contracts

Samples: Executive Employment Agreement (Tempus AI, Inc.), Executive Employment Agreement (Tempus AI, Inc.), Executive Employment Agreement (Tempus AI, Inc.)

Section 280G. Notwithstanding any other provision of this Agreement to In the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from event that the Company undergoes a change in control at a time when it (or any person or entity are considered “parachute payments” under Section 280G affiliate of the CodeCompany, then such parachute payments will including Holdco, that would be limited to treated, together with the greatest amount that may be paid to Executive Company, as a single corporation under Section 280G of the Code without causing and the regulations thereunder) has stock that is readily tradeable on an established securities market (within the meaning of Section 280G of the Code and the regulations thereunder), if all, or any loss portion, of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive payments provided under this Agreement, plus (ii) all either alone or together with other payments and or benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would an affiliate, could constitute a an excess parachute payment” within the meaning of Section 280G of the Code, less (iii) then the amount of federal and state income taxes payable with respect Executive shall be entitled to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in receive (i) and an amount limited so that no portion thereof shall fail to be tax deductible under Section 280G of the Code (the “Limited Amount”), or (ii) above if the amount otherwise payable hereunder, together with the other payments or benefits the Executive is so entitled to receive, (without regard to clause (i)) reduced by the excise tax imposed by Section 4999 of the CodeCode and all other applicable federal, state and local taxes (with income taxes all computed at the highest applicable marginal rate) is greater than the Limited Amount reduced by all taxes applicable thereto (with income taxes all computed at the highest marginal rate), the amount otherwise payable hereunder. The determination as to whether If it is determined that the Limited Amount will maximize the Executive’s after-tax proceeds, payments and to what extent payments are required to benefits shall be reduced to equal the Limited Amount in accordance the following order: (i) first, by reducing cash severance payments, (ii) second, by reducing other payments and benefits to which Q&A 24(c) of Section 1.280G-1 of the Treasury Regulations does not apply, and (iii) finally, by reducing all remaining payments and benefits, with all such reductions done on a pro rata basis. All determinations made pursuant this Section 6.9 11 will be made at the Company’s expense by a nationally recognized certified the independent public accounting firm most recently serving as may be designated by the Company’s outside auditors or such other accounting or benefits consulting group or firm as the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grantdesignate.

Appears in 11 contracts

Samples: Employment Agreement (Party City Holdco Inc.), Employment Agreement (Party City Holdco Inc.), Employment Agreement (Party City Holdco Inc.)

Section 280G. Notwithstanding any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person or entity are considered “parachute payments” under Section 280G of the CodeCode after the application of all exemptions available under Code Section 280G(b)(5)(A), then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iii) the amount of federal federal, state and state income local taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm or other professional services firm, in either case, as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) cancellation of equity awards being taken into account at full value that were granted “contingent on a change in ownership or control” within the meaning of 280G of the Code in the reverse order of date of grant of the awards (that is, the most recently granted equity awards will be cancelled first); (3) any other cash amount payable to Executive, (34) any benefit valued as a “parachute payment,” (45) the acceleration of vesting of any equity awards that are options, and (56) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Appears in 11 contracts

Samples: Executive Employment Agreement (Rigetti Computing, Inc.), Executive Employment Agreement (Rigetti Computing, Inc.), Executive Employment Agreement (Rigetti Computing, Inc.)

Section 280G. Notwithstanding any other provision provisions in this Agreement, in the event that any payment or benefit received or to be received by Executive (including, without limitation, any payment or benefit received in connection with a Change of Control of the Company or the termination of Executive’s employment, whether pursuant to the terms of this Agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person other plan, program, arrangement or entity are considered agreement) (all such payments and benefits, together, the parachute payments” Total Payments”) would be subject (in whole or part), to any excise tax imposed under Section 280G 4999 of the Code, then such parachute payments will be limited to or any successor provision thereto (the greatest amount that may be paid to Executive under “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code without causing any loss of deduction in such other plan, program, arrangement or agreement, the Company will reduce the Total Payments to the Company Group under such sectionextent necessary so that no portion of the Total Payments is subject to the Excise Tax (but in no event to less than zero); provided, but however, that the Total Payments will be reduced only if, by reason if (a) the net amount of such reductionTotal Payments, as so reduced (and after subtracting the net amount of federal, state, municipal and local income and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (b) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state, municipal and local income and employment taxes on such Total Payments and the amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). In the case of a reduction in the Total Payments, the net after tax benefit Total Payments will be reduced in the following order: (1) payments that are payable in cash that are valued at full value under Treasury Regulation Section 1.280G-l, Q&A24(a) will be reduced (if necessary, to Executive zero ), with amounts that are payable last reduced first; (2) payments and benefits due in respect of any equity valued at full value under Treasury Regulation Section 1.280G-1, Q&A24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), will exceed next be reduced; (3) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section l .280G-1, Q&A 24, with amounts that are payable last reduced first, will next be reduced; ( 4) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with the net after tax benefit if highest values reduced first (as such reduction were not made. “Net after tax benefit” for purposes of this Agreement values are determined under Treasury Regulation Section 1.280G-l, Q&A 24), will mean the sum of next be reduced; and (i) the total amounts payable to the Executive under this Agreement, plus (ii5) all other non-cash benefits not otherwise described in clause (2) or (4) will be next reduced pro-rata. Any reductions made pursuant to each of clauses (1) through (4) above will be made in the following manner: first, a pro-rata reduction of cash payment and payments and benefits due in respect of any equity not subject to Section 409A of the Code, and second, a pro-rata reduction of cash payments and payments and benefits due in respect of any equity subject to Section 409A of the Code as deferred compensation. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax: (A) no portion of the Total Payments the receipt or enjoyment of which Executive receives or then is entitled shall have waived at such time and in such manner as not to receive from constitute a “payment” within the Company or otherwise that would meaning of Section 280G(b) of the Code will be taken into account; (B) no portion of the Total Payments will be taken into account that, in the opinion of the Company, does not constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%280G(b)(2) of the applicable Federal rate provided for in Code (including, without limitation, by reason of Section 7872(f)(2280G(b)(4)(A) of the Code. Any reduction ) and, in payments required by this Section 6.9 calculating the Excise Tax, no portion of such Total Payments will occur be taken into account that, in the following order: (1) any cash severanceopinion of the Company, (2) any other cash amount payable to Executiveconstitutes reasonable compensation for services actually rendered, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A 280G(b)(4)(B) of the Code, in excess of the “base amount” (as set forth in Section 280G(b)(3) of the Code) that is allocable to such reasonable compensation; and then with respect to amounts that are. In (C) the event that acceleration value of compensation from equity awards is to be reduced, such acceleration of vesting any non-cash benefit or any deferred payment or benefit included in the Total Payments will be canceled, subject to determined by the immediately preceding sentence, Company in accordance with the reverse order principles of Sections 280G(d)(3) and (4) of the date of grantCode.

Appears in 10 contracts

Samples: Employment Agreement (Grizzly Energy, LLC), Employment Agreement (Grizzly Energy, LLC), Employment Agreement (Grizzly Energy, LLC)

Section 280G. (a) Notwithstanding any other provision provisions of this Agreement to the contrary, if payments made in the event that it shall be determined that any payment or benefits provided distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise from (the Company or any person or entity are considered parachute payments” under Section 280G of the CodePayments”), then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a an excess parachute payment” within the meaning of Section 280G of the Code, less the Company shall reduce (iiibut not below zero) the aggregate present value of the Payments under the Agreement to the Reduced Amount (as hereinafter defined), if reducing the Payments under this Agreement will provide the Executive with a greater net after-tax amount than would be the case if no such reduction was made. The Payments shall be reduced as described in the preceding sentence only if (1) the net amount of the Payments, as so reduced (and after subtracting the net amount of federal, state and local income and payroll taxes on the reduced Payments), is greater than or equal to (2) the net amount of the Payments without such reduction (but after subtracting the net amount of federal, state and local income and payroll taxes on the Payments and the amount of federal and state income taxes payable Excise Tax (as hereinafter defined) to which the Executive would be subject with respect to the foregoing calculated at unreduced Payments). Any reduction shall be made in accordance with Section 409A of the maximum marginal income tax rate for each year Code. (b) The “Reduced Amount” shall be an amount expressed in which present value that maximizes the foregoing will aggregate present value of Payments without causing any Payment under this Agreement to be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect subject to the payments and benefits described Excise Tax, determined in (iaccordance with Section 280G(d)(4) and (ii) above by of the Code. The term “Excise Tax” means the excise tax imposed under Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance , together with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment interest or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first penalties imposed with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grantexcise tax.

Appears in 9 contracts

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

Section 280G. Notwithstanding any other provision of this Agreement, in the event that the amount of payments or other benefits payable to Executive under this Agreement to (including, without limitation, the contraryacceleration of any payment or the accelerated vesting of any payment or other benefit), if payments made together with any payments, awards or benefits provided pursuant to this Agreement payable under any other plan, program, arrangement or otherwise from agreement maintained by the Company Corporation or any person one of its Subsidiaries or entity are considered other Affiliates, would constitute an excess parachute paymentspaymentunder (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), then such parachute payments will and benefits shall be limited to reduced (by the greatest minimum possible amounts) in the order set forth below until no amount that may be paid payable to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a constitutes an excess parachute payment” (within the meaning of Section 280G of the Code); provided, less however, that no such reduction shall be made if the net after-tax amount (iiiafter taking into account federal, state, local or other income, employment and excise taxes) to which Executive would otherwise be entitled without such reduction would be greater than the net after-tax amount of federal (after taking into account federal, state, local or other income, employment and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid excise taxes) to Executive (based upon resulting from the rate in effect for receipt of such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Codewith such reduction. The determination as If any payments or benefits payable to whether and to what extent payments Executive are required to be reduced pursuant to this Paragraph, such payments and/or benefits to Executive shall be reduced in accordance the following order: first, payments that are payable in cash, with this amounts that are payable last reduced first; second, payments due in respect of any equity or equity derivatives included at their full value under Section 6.9 will 280G (rather than their accelerated value); third, payments due in respect of any equity or equity derivatives valued at accelerated value under Section 280G, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); and fourth, all other non-cash benefits. All determinations required to be made under this Paragraph 8(g), including whether a payment would result in an “excess parachute payment” and the assumptions to be utilized in arriving at the Company’s expense such determinations, shall be made by a nationally recognized certified public an accounting firm as may be designated by the Company prior to a change in control Corporation (the “Accounting Firm”)) which shall provide detailed supporting calculations both to the Corporation and Executive as requested by the Corporation or Executive. In All fees and expenses of the event of any mistaken underpayment or overpayment under this AgreementAccounting Firm shall be borne solely by the Corporation and shall be paid by the Corporation. Absent manifest error, as determined all determinations made by the Accounting Firm, Firm under this Paragraph 8(g) shall be final and binding upon the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Corporation and Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Appears in 6 contracts

Samples: Employment Agreement (B&G Foods, Inc.), Employment Agreement (B&G Foods, Inc.), Employment Agreement (B&G Foods, Inc.)

Section 280G. (a) Notwithstanding any other provision provisions in this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a change in control of the Parent or the Company or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person other plan, program, arrangement or entity are considered agreement) (all such payments and benefits, together, the parachute payments” Total Payments”) would be subject (in whole or part), to any excise tax imposed under Section 280G 4999 of the Code, then such parachute payments will be limited to or any successor provision thereto (the greatest amount that may be paid to Executive under “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code without causing any loss of deduction in such other plan, program, arrangement or agreement, the Company will reduce the Total Payments to the Company Group under such sectionextent necessary so that no portion of the Total Payments is subject to the Excise Tax (but in no event to less than zero); provided, but however, that the Total Payments will only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit be reduced if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state, municipal and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state, municipal and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). (b) In the case of a reduction in the Total Payments, the Total Payments will be reduced in the following order: (i) payments that are payable in cash that are valued at full value under Treasury Regulation Section 1.280G-1, Q&A 24(a) will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity valued at full value under Treasury Regulation Section 1.280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24) will next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with amounts that are payable last reduced first, will next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24) will next be reduced; and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) will be next reduced pro-rata. Any reductions made pursuant to each of clauses (i)-(v) above will be made in the following manner: first, a pro-rata reduction of cash payment and payments and benefits due in respect of any equity not subject to Section 409A, and second, a pro-rata reduction of cash payments and payments and benefits due in respect of any equity subject to Section 409A as deferred compensation. (c) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax: (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code will be taken into account; (ii) no portion of the Total Payments will be taken into account which, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive under this Agreementand selected by the accounting firm which was, plus immediately prior to the change in control, the Company’s independent auditor (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would “Auditor”), does not constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%280G(b)(2) of the applicable Federal rate provided for in Code (including by reason of Section 7872(f)(2280G(b)(4)(A) of the Code. Any reduction ) and, in payments required by this Section 6.9 calculating the Excise Tax, no portion of such Total Payments will occur be taken into account which, in the following order: (1) any cash severanceopinion of Tax Counsel, (2) any other cash amount payable to Executiveconstitutes reasonable compensation for services actually rendered, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A 280G(b)(4)(B) of the Code, in excess of the “base amount” (as set forth in Section 280G(b)(3) of the Code) that is allocable to such reasonable compensation; and then with respect to amounts that are. In (iii) the event that acceleration value of compensation from equity awards is to be reduced, such acceleration of vesting any non-cash benefit or any deferred payment or benefit included in the Total Payments will be canceleddetermined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (d) At the time that payments are made under this Agreement, subject the Company will provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations, including any opinions or other advice the Company received from Tax Counsel, the Auditor, or other advisors or consultants (and any such opinions or advice which are in writing will be attached to the immediately preceding sentencestatement). If the Executive objects to the Company’s calculations, the Company will pay to the Executive such portion of the Total Payments (up to 100% thereof) as the Executive determines is necessary to result in the reverse order proper application of this Section 5. All determinations required by this Section 5 (or requested by either the Executive or the Company in connection with this Section 5) will be at the expense of the date Company. The fact that the Executive’s right to payments or benefits may be reduced by reason of grantthe limitations contained in this Section 5 will not of itself limit or otherwise affect any other rights of the Executive under this Agreement.

Appears in 6 contracts

Samples: Employment Agreement (Eagle Bulk Shipping Inc.), Employment Agreement (Eagle Bulk Shipping Inc.), Employment Agreement (Eagle Bulk Shipping Inc.)

Section 280G. Notwithstanding (a) If any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant received or to be received by Executive under this Agreement or otherwise from otherwise, including, without limitation, the Company severance benefits received in connection with a Change in Control or any person or entity are considered Executive’s termination of employment under Section 5.3 (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and would, less (iii) the amount of federal and state income taxes payable with respect but for this Section 22, be subject to the foregoing calculated at the maximum marginal income excise tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by under Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control Code (the “Accounting FirmExcise Tax”), then prior to making the 280G Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to Executive of the 280G Payments after payment of the Excise Tax to (ii) the Net Benefit to Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. In If the event amount calculated under (i) above is less than the amount under (ii) above, the 280G Payments will be reduced to the minimum extent necessary to ensure that no portion of any mistaken underpayment or overpayment under the 280G Payments is subject to the Excise Tax. For purposes of this Agreement, as determined by “Net Benefit” shall mean the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) present value of the applicable Federal rate provided for in Section 7872(f)(2) 280G Payments net of the Codeall federal, state, local, foreign income, employment, and excise taxes. Any reduction in payments required by made pursuant to this Section 6.9 will occur in the following order: (1) 22 shall be made first from any cash severance, then from any payment in respect of an equity award that is not covered by Treas. Reg. Section 1.280G-1 Q/A-24(b) or (2) c), then from any other cash amount payable to Executivepayment in respect of an equity award that is covered by Treas. Reg. Section 1.280G-1 Q/A-24(c), (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that in each case in reverse order beginning with payments or benefits which are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to paid the immediately preceding sentence, farthest in time from the reverse order of the date of grantdetermination.

Appears in 6 contracts

Samples: Employment Agreement (Surf Air Mobility Inc.), Employment Agreement (Surf Air Mobility Inc.), Employment Agreement (Surf Air Mobility Inc.)

Section 280G. Notwithstanding any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from under any other agreement or arrangement with any member of the Company Group or any person or entity are considered “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 7 will be made at the Company’s expense by a nationally recognized certified public accounting firm that is recognized for its expertise in Section 280G of the Code as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be. In the event of any reduction in payments pursuant to this paragraph, payments and benefits shall be reduced in a manner that maximizes the Executive’s economic position. In applying this principle, the reduction shall be made in a manner consistent with interest at one hundred twenty (120%) the requirements of the applicable Federal rate provided for in Section 7872(f)(2) 409A of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any where two economically equivalent amounts are subject to reduction but payable at different times, such category of payments and benefits, amounts shall be reduced on a reduction will occur first with respect to amounts that are pro rata basis but not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that arebelow zero. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant. In connection with making determinations under this Section 7, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by Executive before or after the Change in Control, including any non-competition provisions that may apply to Executive, and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.

Appears in 5 contracts

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

Section 280G. Notwithstanding any other provision of this Agreement anything to the contrarycontrary in this Agreement, if payments made or benefits provided pursuant to this Agreement or otherwise from Section 5.10 shall apply in the Company or any person or entity are considered “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum event of (i) a “change in the total amounts payable to ownership or effective control” of the Executive under this Agreement, plus Company or (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute paymentchange in the ownership of a substantial portion of the assetsof the Company, each within the meaning of Section 280G of the CodeCode (collectively, less (iii) the amount an “Excise Tax Event”). If, as a result of federal an Excise Tax Event, any payments and state income taxes payable benefits provided for in this Agreement, together with respect to the foregoing calculated at the maximum marginal income tax rate for each year in any other payments and benefits which the foregoing will be paid Executive has the right to Executive receive from the Company or any of its affiliates, would constitute a “parachute payment” (based upon as defined in Section 280G(b)(2) of the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employmentCode), less (iv) the amount of excise taxes imposed with respect to then the payments and benefits described provided for in this Agreement shall be either (ia) reduced (but not below zero) so that the present value of such total amounts and benefits received by the Executive from the Company and its affiliates will be one dollar ($1.00) less than three times the Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and (ii) above so that no portion of such amounts and benefits received by the Executive shall be subject to the excise tax imposed by Section 4999 of the CodeCode or (b) paid in full, whichever produces the better net after‑tax position to the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The determination as to whether reduction of payments and to what extent payments are required to be reduced in accordance with this Section 6.9 will benefits hereunder, if applicable, shall be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) by reducing the amounts of any cash severancepayments or benefits that would not constitute deferred compensation under Section 409A, to the extent necessary to decrease the payments subject to the Excise Tax, as agreed by the Company and the Executive; (2) any other next, by reducing, payments or benefits to be paid in cash amount payable hereunder and that 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 Executivethe extent necessary, through to such payment or benefit that would be made first in time); and (3) finally, by reducing any non-cash or in-kind benefit valued to be provided hereunder and that constitute deferred compensation under Section 409A in a similar order to that described in clause (2). The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its affiliates) used in determining if a “parachute payment,exists, exceeds one dollar (4$1.00) less than three times the acceleration of vesting of Executive’s base amount, then the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5.10 shall require the Company to be responsible for, or have any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first liability or obligation with respect to amounts that are not “deferred compensation” within to, the meaning of Executive’s excise tax liabilities under Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order 4999 of the date of grantCode.

Appears in 5 contracts

Samples: Employment Agreement (Seventy Seven Energy Inc.), Employment Agreement (Seventy Seven Energy Inc.), Employment Agreement (Seventy Seven Energy Inc.)

Section 280G. (i) Notwithstanding any other provision provisions in this Agreement, in the event that any payment or benefit received or to be received by Executive (including, without limitation, any payment or benefit received in connection with a change of control of the Company or the termination of Executive’s employment, whether pursuant to the terms of this Agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person other plan, program, arrangement or entity are considered agreement) (all such payments and benefits, together, the parachute payments” Total Payments”) would be subject (in whole or part), to any excise tax imposed under Section 280G 4999 of the Code, then such parachute payments will be limited to or any successor provision thereto (the greatest amount that may be paid to Executive under “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code without causing any loss of deduction in such other plan, program, arrangement or agreement, the Company will reduce the Total Payments to the Company Group under such sectionextent necessary so that no portion of the Total Payments is subject to the Excise Tax (but in no event to less than zero); provided, but however, that the Total Payments will be reduced only if, by reason if (A) the net amount of such reductionTotal Payments, as so reduced (and after subtracting the net amount of federal, state, municipal and local income and employment taxes on such reduced Total Payments and after tax benefit taking into account the phase out of itemized deductions and personal exemptions attributable to Executive will exceed such reduced Total Payments), is greater than or equal to (B) the net after tax benefit if amount of such Total Payments without such reduction were not made. “Net (but after tax benefit” for purposes subtracting the net amount of this Agreement will mean federal, state, municipal and local income and employment taxes on such Total Payments and the sum amount of (i) Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the total amounts payable phase out of itemized deductions and personal exemptions attributable to the Executive under this Agreement, plus such unreduced Total Payments). (ii) all other In the case of a reduction in the Total Payments, the Total Payments will be reduced in the following order: (1) payments that are payable in cash that are valued at full value under Treasury Regulation Section 1.280G-1, Q&A 24(a) will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (2) payments and benefits due in respect of any equity valued at full value under Treasury Regulation Section 1.280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), will next be reduced; (3) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with amounts that are payable last reduced first, will next be reduced; (4) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), will next be reduced; and (5) all other non-cash benefits not otherwise described in clause (2) or (4) will be next reduced pro-rata. Any reductions made pursuant to each of clauses (1) through (4) above will be made in the following manner: first, a pro-rata reduction of cash payment and payments and benefits due in respect of any equity not subject to Section 409A of the Code, and second, a pro-rata reduction of cash payments and payments and benefits due in respect of any equity subject to Section 409A of the Code as deferred compensation. (iii) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax: (A) no portion of the Total Payments the receipt or enjoyment of which Executive receives or then is entitled shall have waived at such time and in such manner as not to receive from constitute a “payment” within the Company or otherwise that would meaning of Section 280G(b) of the Code will be taken into account; (B) no portion of the Total Payments will be taken into account that, in the opinion of the Company, does not constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%280G(b)(2) of the applicable Federal rate provided for in Code (including, without limitation, by reason of Section 7872(f)(2280G(b)(4)(A) of the Code. Any reduction ) and, in payments required by this Section 6.9 calculating the Excise Tax, no portion of such Total Payments will occur be taken into account that, in the following order: (1) any cash severanceopinion of the Company, (2) any other cash amount payable to Executiveconstitutes reasonable compensation for services actually rendered, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A 280G(b)(4)(B) of the Code, in excess of the “base amount” (as set forth in Section 280G(b)(3) of the Code) that is allocable to such reasonable compensation; and then with respect to amounts that are. In (C) the event that acceleration value of compensation from equity awards is to be reduced, such acceleration of vesting any non-cash benefit or any deferred payment or benefit included in the Total Payments will be canceled, subject to determined by the immediately preceding sentence, Company in accordance with the reverse order principles of Sections 280G(d)(3) and (4) of the date of grantCode.

Appears in 5 contracts

Samples: Employment Agreement (American Electric Technologies Inc), Employment Agreement (Energy XXI Gulf Coast, Inc.), Employment Agreement (Energy XXI Gulf Coast, Inc.)

Section 280G. Notwithstanding any other provision of this Agreement anything to the contrarycontrary in this Agreement, if payments made or benefits provided pursuant to this Agreement or otherwise from Section 5.8 shall apply in the Company or any person or entity are considered “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum event of (i) a “change in the total amounts payable to ownership or effective control” of the Executive under this Agreement, plus Company or (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute paymentchange in the ownership of a substantial portion of the assetsof the Company, each within the meaning of Section 280G of the CodeCode (collectively, less (iii) the amount of federal an “Excise Tax Event”). If an Excise Tax Event is consummated, and state income taxes payable as a result any payments and benefits provided for in this Agreement, together with respect to the foregoing calculated at the maximum marginal income tax rate for each year in any other payments and benefits which the foregoing will be paid Executive has the right to Executive receive from the Company or any of its affiliates, would constitute a “parachute payment” (based upon as defined in Section 280G(b)(2) of the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employmentCode), less (iv) the amount of excise taxes imposed with respect to then the payments and benefits described provided for in this Agreement shall be either (ia) reduced (but not below zero) so that the present value of such total amounts and benefits received by the Executive from the Company and its affiliates will be one dollar ($1.00) less than three times the Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and (ii) above so that no portion of such amounts and benefits received by the Executive shall be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), or (b) paid in full, whichever produces the better net after-tax position to the Executive (taking into account any applicable Excise Tax and any other applicable taxes). The determination as to whether reduction of payments and to what extent payments are required to be reduced in accordance with this Section 6.9 will benefits hereunder, if applicable, shall be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) by reducing the amounts of any cash severancepayments or benefits that would not constitute deferred compensation under Section 409A, to the extent necessary to decrease the payments subject to the Excise Tax, as agreed by the Company and the Executive; (2) any other next, by reducing, payments or benefits to be paid in cash amount payable hereunder and that 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 Executivethe extent necessary, through to such payment or benefit that would be made first in time); and (3) finally, by reducing any non-cash or in-kind benefit valued to be provided hereunder and that constitute deferred compensation under Section 409A in a similar order to that described in clause (2). The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its affiliates) used in determining if a “parachute payment,exists, exceeds one dollar (4$1.00) less than three times the acceleration of vesting of Executive’s base amount, then the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5.8 shall require the Company to be responsible for, or have any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first liability or obligation with respect to amounts that are not “deferred compensation” within to, the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grantExecutive’s Excise Tax liabilities.

Appears in 4 contracts

Samples: Employment Agreement (Seventy Seven Energy Inc.), Employment Agreement (Seventy Seven Energy Inc.), Employment Agreement (Seventy Seven Energy Inc.)

Section 280G. Notwithstanding any other provision of (a) Anything in this Agreement to the contrarycontrary notwithstanding, if payments made in the event that the amount of any compensation, payment or benefits provided distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise from the Company or any person or entity are considered “parachute payments” under otherwise, calculated in a manner consistent with Section 280G of (the Code“Aggregate Payments”), then such parachute payments will would be limited subject to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after excise tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to , then the Aggregate Payments shall be reduced in accordance with this Section 6.9 will (but not below zero) so that the sum of all of the Aggregate Payments shall be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, $1.00 less than the amount of such underpayment or overpayment will forthwith be paid to at which Executive or refunded becomes subject to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in excise tax imposed by Section 7872(f)(2) 4999 of the Code; provided that such reduction shall only occur if it would result in Executive receiving a higher After-Tax Amount (as defined below) than Executive would receive if the Aggregate Payments were not subject to such reduction. Any reduction in payments required by this Section 6.9 will occur In such event, the 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: (1i) any cash severance, payments not subject to Section 409A of the Code; (2ii) any other cash amount payable payments subject to Executive, Section 409A of the Code; (3iii) any benefit valued as a “parachute payment,” equity-based payments and acceleration; and (4iv) non-cash forms of benefits; provided that in the acceleration case of vesting of any equity awards all the foregoing Aggregate Payments all amounts or payments that are optionsnot subject to calculation under Treas. Reg. §1.280G-1, and Q&A-24(b) or (5c) the acceleration of vesting of shall be reduced before any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c). (b) For purposes of this Section 3.3, the deferred compensationAfter-Tax Amountwithin means the meaning amount of Section 409A the Aggregate Payments less all federal, state, and then with respect local income, excise and employment taxes imposed on Executive as a result of Executive’s receipt of the Aggregate Payments. For purposes of determining the After-Tax Amount, Executive shall be deemed to amounts that are. In pay federal income taxes at the event that acceleration highest marginal rate of compensation from equity awards federal income taxation applicable to individuals for the calendar year in which the determination is to be reducedmade, such acceleration and state and local income taxes at the highest marginal rates of vesting will be canceled, subject to the immediately preceding sentence, individual taxation in the reverse order state and locality applicable to Executive on the Date of Termination, net of the date maximum reduction in federal income taxes which could be obtained from deduction of grantsuch state and local taxes.

Appears in 3 contracts

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

Section 280G. Notwithstanding any other provision of 7.1 Anything in this Agreement to the contrarycontrary notwithstanding, if payments made in the event that the amount of any compensation, payment or benefits provided distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, calculated in a manner consistent with Section 280G of the Code and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, then the Aggregate Payments shall be reduced (but not below zero) so that the sum of all of the Aggregate Payments shall be $1.00 less than the amount at which 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 Executive receiving a higher After Tax Amount (as defined below) than Executive would receive if the Aggregate Payments were not subject to such reduction. In such event, the 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 Company or any person or entity are considered “parachute payments” under transaction that is subject to Section 280G of the Code, then such parachute : (1) cash payments will be limited not subject to the greatest amount that may be paid to Executive under Section 280G 409A of the Code without causing Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) 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. Reg. §1.280G-1, Q&A-24(b) or (c) shall be reduced before any loss of deduction amounts that are subject to the Company Group calculation under such sectionTreas. Reg. §1.280G-1, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for Q&A-24(b) or (c). 7.2 For purposes of this Agreement will mean Section 5, the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a parachute paymentAfter Tax Amountwithin the meaning of Section 280G of the Code, less (iii) means the amount of the Aggregate Payments less all federal, state, and local income, excise and employment taxes imposed on Executive as a result of Executive’s receipt of the Aggregate Payments. For purposes of determining the After Tax Amount, Executive shall be deemed to pay federal and state income taxes payable with respect to the foregoing calculated at the maximum highest marginal rate of federal income tax rate taxation applicable to individuals for each the calendar year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reducedmade, such acceleration and state and local income taxes at the highest marginal rates of vesting will be canceledindividual taxation in each applicable state and locality, subject to the immediately preceding sentence, in the reverse order net of the date maximum reduction in federal income taxes which could be obtained from deduction of grant.such state and local taxes

Appears in 3 contracts

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

Section 280G. (a) Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments made or benefits provided received or to be received by Executive (including, without limitation, any payment or benefits received in connection with a Change in Control or Executive’s termination of employment, whether pursuant to the terms of this Agreement or otherwise from any other plan, arrangement, or agreement, or otherwise) (all such payments collectively referred to herein as the Company or any person or entity are considered “280G Payments”) constitute “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code, less (iii) the amount of federal and state income taxes payable with respect will be subject to the foregoing calculated at the maximum marginal income excise tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in imposed under Section 4999 of the Code at (the time of termination of Executive’s employment“Excise Tax”), less the Company shall either (ivi) reduce (but not below zero) such payments or benefits received or to be received by Executive so that the amount aggregate present value of excise taxes imposed with respect to the payments and benefits described in (i) and received by Executive is $1.00 less than the amount which would otherwise cause Executive to incur an Excise Tax, or (ii) above be paid in full, whichever results in the greatest net after-tax payment to Executive. (b) 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 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 determination Company and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to whether and to what extent payments are required to be reduced in accordance with make its determinations under this Section 6.9 will be made at 5.9. The Company shall bear all costs the Company’s expense by a nationally recognized certified public accounting firm as Tax Counsel may be designated by the Company prior to a change reasonably incur in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, connection with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grantits services.

Appears in 3 contracts

Samples: Employment Agreement (Golden Nugget Online Gaming, Inc.), Executive Employment Agreement, Executive Employment Agreement (Waitr Holdings Inc.)

Section 280G. Notwithstanding any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person or entity are considered “parachute payments” under Section 280G of the CodeCode after the application of all exemptions available under Code Section 280G(b)(5)(A), then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iii) the amount of federal federal, state and state income local taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm or other professional services firm, in either case, as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: : (1) any cash severance, (2) cancellation of equity awards being taken into account at full value that were granted “contingent on a change in ownership or control” within the meaning of 280G of the Code in the reverse order of date of grant of the awards (that is, the most recently granted equity awards will be cancelled first); (3) any other cash amount payable to Executive, (34) any benefit valued as a “parachute payment,” (45) the acceleration of vesting of any equity awards that are options, and (56) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Appears in 2 contracts

Samples: Executive Employment Agreement (Rigetti Computing, Inc.), Executive Employment Agreement (Supernova Partners Acquisition Co II, Ltd.)

Section 280G. Notwithstanding any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person or entity are considered “parachute payments” under Section 280G of the CodeCode after the application of all exemptions available under Code Section 280G(b)(5)(A), then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iii) the amount of federal federal, state and state income local taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm or other professional services firm, in either case, as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) cancellation of equity awards being taken into account at full value that were granted “contingent on a change in ownership or control” within the meaning of 280G of the Code in the reverse order of date of grant of the awards (that is, the most recently granted equity awards will be cancelled first); (3) any other cash amount payable to Executive, (34) any benefit valued as a “parachute payment,” (45) the acceleration of vesting of any equity awards that are options, and (56) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Appears in 2 contracts

Samples: Executive Employment Agreement (Sportsman's Warehouse Holdings, Inc.), Executive Employment Agreement (Rigetti Computing, Inc.)

Section 280G. Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments made or benefits provided or to be provided by the Company or any of its Affiliates to Participant or for Participant’s benefit pursuant to the terms of this Agreement or otherwise from the Company or any person or entity are considered (Covered Payments”) constitute “excess parachute payments” under within the meaning of Section 280G of the CodeCode and would, then such parachute payments will but for this Section 7(c), be limited to the greatest amount that may be paid to Executive (x) nondeductible under Section 280G of the Code without causing any loss of deduction and/or (y) subject to the Company Group excise tax imposed under Section 4999 of the Code (or any successor provisions applicable to such section, but only if, Sections) or any similar tax imposed by reason of state or local law or any interest or penalties with respect to such reductiontaxes (collectively, the net after tax benefit “Excise Tax”), then the Covered Payments will be reduced to Executive 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 exceed be made only if and to the net after tax benefit if extent that such reduction were not madewould 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). “Net after tax benefit” for purposes of this Agreement will mean Any reductions hereunder shall be made in accordance with Section 409A and the sum of following: (iA) the total amounts payable payments and benefits that do not constitute nonqualified deferred compensation subject to the Executive under this Agreement, plus Section 409A shall be reduced first; and (iiB) all other payments and benefits which the Executive receives shall then be reduced as follows: (I) cash payments shall be reduced before non-cash payments; and (II) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. Any determination required under this Section 6(c), including, but not limited to, whether any payments or then is entitled to receive from the Company benefits are or otherwise that would constitute a could be “parachute paymentpayments” within the meaning of Section 280G of the Code, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will shall be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment Committee (or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grantits designee).

Appears in 2 contracts

Samples: Long Term Incentive Award Agreement (Tellurian Inc. /De/), Long Term Incentive Award Agreement (Tellurian Inc. /De/)

Section 280G. Notwithstanding any other provision of this Agreement, in the event that the amount of payments or other benefits payable to Executive under this Agreement to (including, without limitation, the contraryacceleration of any payment or the accelerated vesting of any payment or other benefit), if payments made together with any payments, awards or benefits provided pursuant to this Agreement payable under any other plan, program, arrangement or otherwise from agreement maintained by the Company Corporation or any person one of its Subsidiaries or entity are considered other Affiliates, would constitute an excess parachute paymentspaymentunder (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), then such parachute payments will and benefits shall be limited to reduced (by the greatest minimum possible amounts) in the order set forth below until no amount that may be paid payable to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a constitutes an excess parachute payment” (within the meaning of Section 280G of the Code); provided, less however, that no such reduction shall be made if the net after-tax amount (iiiafter taking into account federal, state, local or other income, employment and excise taxes) to which Executive would otherwise be entitled without such reduction would be greater than the net after-tax amount of federal (after taking into account federal, state, local or other income, employment and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid excise taxes) to Executive (based upon resulting from the rate in effect for receipt of such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Codewith such reduction. The determination as If any payments or benefits payable to whether and to what extent payments Executive are required to be reduced pursuant to this Paragraph, such payments and/or benefits to Executive shall be reduced in accordance the following order: first, payments that are payable in cash, with this amounts that are payable last reduced first; second, payments due in respect of any equity or equity derivatives included at their full value under Section 6.9 will 280G (rather than their accelerated value); third, payments due in respect of any equity or equity derivatives valued at accelerated value under Section 280G, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); and fourth, all other non-cash benefits. All determinations required to be made under this Paragraph 7(g), including whether a payment would result in an “excess parachute payment” and the assumptions to be utilized in arriving at the Company’s expense such determinations, shall be made by a nationally recognized certified public an accounting firm as may be designated by the Company prior to a change in control Corporation (the “Accounting Firm”)) which shall provide detailed supporting calculations both to the Corporation and Executive as requested by the Corporation or Executive. In All fees and expenses of the event of any mistaken underpayment or overpayment under this AgreementAccounting Firm shall be borne solely by the Corporation and shall be paid by the Corporation. Absent manifest error, as determined all determinations made by the Accounting Firm, Firm under this Paragraph 7(g) shall be final and binding upon the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Corporation and Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Appears in 2 contracts

Samples: Employment Agreement (B&G Foods, Inc.), Employment Agreement (B&G Foods, Inc.)

Section 280G. Notwithstanding (a) If any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant received or to be received by Executive under this Agreement or otherwise from otherwise, including, without limitation, the Company severance benefits received in connection with a Change in Control or any person or entity are considered Executive’s termination of employment under Section 5.3 (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and would, less (iii) the amount of federal and state income taxes payable with respect but for this Section 22, be subject to the foregoing calculated at the maximum marginal income excise tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by under Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control Code (the “Accounting FirmExcise Tax”), then prior to making the 280G Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to Executive of the 280G Payments after payment of the Excise Tax to (ii) the Net Benefit to Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. In If the event amount calculated under (i) above is less than the amount under (ii) above, the 280G Payments will be reduced to the minimum extent necessary to ensure that no portion of any mistaken underpayment or overpayment under the 280G Payments is subject to the Excise Tax. For purposes of this Agreement, as determined by “Net Benefit” shall mean the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid present value to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) 280G Payments net of the Codeall federal, state, local, foreign income, employment, and excise taxes. Any reduction in payments required by made pursuant to this Section 6.9 will occur in the following order: (1) 22 shall be made first from any cash severance, then from any payment in respect of an equity award that is not covered by Treas. Reg. Section 1.280G-1 Q/A-24(b) or (2) c), then from any other cash amount payable to Executivepayment in respect of an equity award that is covered by Treas. Reg. Section 1.280G-1 Q/A-24(c), (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that in each case in reverse order beginning with payments or benefits which are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to paid the immediately preceding sentence, farthest in time from the reverse order of the date of grantdetermination.

Appears in 2 contracts

Samples: Employment Agreement (Surf Air Mobility Inc.), Employment Agreement (Surf Air Mobility Inc.)

Section 280G. Notwithstanding any other provision of 7.1 Anything in this Agreement to the contrarycontrary notwithstanding, if payments made in the event that the amount of any compensation, payment or benefits provided distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, calculated in a manner consistent with Section 280G of the Code and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, then the Aggregate Payments shall be reduced (but not below zero) so that the sum of all of the Aggregate Payments shall be $1.00 less than the amount at which 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 Executive receiving a higher After Tax Amount (as defined below) than Executive would receive if the Aggregate Payments were not subject to such reduction. In such event, the 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 Company or any person or entity are considered “parachute payments” under transaction that is subject to Section 280G of the Code, then such parachute : (1) cash payments will be limited not subject to the greatest amount that may be paid to Executive under Section 280G 409A of the Code without causing Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) 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. Reg. §1.280G-1, Q&A-24(b) or (c) shall be reduced before any loss of deduction amounts that are subject to the Company Group calculation under such sectionTreas. Reg. §1.280G-1, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for Q&A-24(b) or (c). 7.2 For purposes of this Agreement will mean Section 5, the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a parachute paymentAfter Tax Amountwithin the meaning of Section 280G of the Code, less (iii) means the amount of the Aggregate Payments less all federal, state, and local income, excise and employment taxes imposed on Executive as a result of Executive’s receipt of the Aggregate Payments. For purposes of determining the After Tax Amount, Executive shall be deemed to pay federal and state income taxes payable with respect to the foregoing calculated at the maximum highest marginal rate of federal income tax rate taxation applicable to individuals for each the calendar year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reducedmade, such acceleration and state and local income taxes at the highest marginal rates of vesting will be canceledindividual taxation in each applicable state and locality, subject to the immediately preceding sentence, in the reverse order net of the date maximum reduction in federal income taxes which could be obtained from deduction of grantsuch state and local taxes.

Appears in 2 contracts

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

Section 280G. Notwithstanding In the event that it shall be determined that any other provision payment or distribution to or for the benefit of this Agreement to the contrary, if payments made or benefits provided pursuant to Executive under this Agreement or otherwise from under any other Company plan, contract or agreement would, but for the Company or any person or entity are considered “parachute payments” under effect of this Section 280G of the Code11(o), then such parachute payments will be limited subject to the greatest amount that may be paid to Executive under excise tax imposed by Section 280G 4999 of the Code without causing or any loss interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”), then, at the election of deduction the Executive, in the event that the after-tax value of all Payments (as defined below) to the Company Group under Executive (such sectionafter-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such Payments) would, but only ifin the aggregate, by reason be less than the after-tax value to the Executive of such reductionthe Safe Harbor Amount (as defined below), the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i1) the total amounts cash portions of the Payments payable to the Executive under this AgreementAgreement shall be reduced, plus in the order in which they are due to be paid, until the Parachute Value (iias defined below) of all other payments Payments paid to the Executive, in the aggregate, equals the Safe Harbor Amount, and benefits which (2) if the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G reduction of the Code, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 cash portions of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment Payments, payable under this Agreement, as determined by to zero would not be sufficient to reduce the Accounting FirmParachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the amount 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 such underpayment or overpayment will forthwith be all Payments paid to Executive or refunded to the CompanyExecutive, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severanceaggregate, (2) any other cash amount payable to Executiveequals the Safe Harbor Amount, and (3) any benefit valued as a “parachute payment,” (4) if the acceleration reduction of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order all cash portions of the date of grant.Payments, payable pursuant to this Agreement and otherwise, to zero would not be sufficient to reduce the Parachute Value of

Appears in 1 contract

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

Section 280G. Notwithstanding If any other provision of the payments or benefits received or to be received by the Executive (including, without limitation, any payment or benefits received in connection with a Change in Control or the Executive’s termination of employment, whether pursuant to the terms of this Agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person other plan, arrangement or entity are considered agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and would, less (iii) the amount of federal and state income taxes payable with respect but for this Section 5.2, be subject to the foregoing calculated at the maximum marginal income excise tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in imposed under Section 4999 of the Code at (the time of termination of Executive’s employment“Excise Tax”), less (iv) then prior to making the amount of excise taxes imposed with respect to the payments and benefits described in 280G Payments, a calculation shall be made comparing (i) and the Net Benefit (as defined below) to the Executive of the 280G Payments after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above by Section 4999 will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the Code280G Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. The determination as to whether calculation of the Net Benefit and to what extent payments are required to be reduced in accordance with any reduction under this Section 6.9 will 5.2 shall be made at the Company’s expense performed by a nationally nationally-recognized certified public accounting firm as may be designated selected by the Company prior and reasonably acceptable to the Executive, and any reduction made pursuant to this Section 5.2 shall be made in a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as manner determined by the Accounting Firm, Company that is consistent with the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning requirements of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.409A.

Appears in 1 contract

Samples: Chief Executive Officer Employment Agreement (Omnova Solutions Inc)

Section 280G. Notwithstanding any other provision of this Agreement anything to the contrary, if payments made or benefits provided pursuant to contrary in this Agreement or otherwise from any other agreement with the Company Executive, Executive expressly agrees that if the payments and benefits provided for in this Agreement or any person or entity are considered “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which that Executive has the Executive receives or then is entitled right to receive from the Company or otherwise that and its affiliates (collectively, the “Payments”), would constitute a “parachute payment” within (as defined in Section 280G(b)(2) of the meaning Internal Revenue Code of 1986, as amended), then the Payments shall be either (i) reduced (but not below zero) so that the present value of the Payments will be one dollar ($1.00) less than three times Executive’s “base amount” (as defined in Section 280G 280G(b)(3) of the Code, less (iii) and so that no portion of the amount of federal and state income taxes payable with respect Payments received by Executive shall be subject to the foregoing calculated at the maximum marginal income excise tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the CodeCode or (ii) paid in full, whichever produces the better net after-tax position to Executive. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will reduction of Payments, if any, shall be made at by reducing first any Payments that are exempt from Section 409A of the Company’s expense Code and then reducing any Payments subject to Section 409A of the Code in the reverse order in which such Payments would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time). The professional firm engaged by the Company for general tax purposes as of the day prior to the date of the event that might reasonably be anticipated to result in Payments that would otherwise be subject to the excise tax will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquiring company, the Company will appoint a nationally recognized certified public accounting tax firm as may be designated by to make the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments determinations required by this Section 6.9 6(e). The Company will occur bear all expenses with respect to the determinations by such firm required to be made by this Section 6(e). The Company and Executive shall furnish such tax firm such information and documents as the tax firm may reasonably request in order to make its required determination. The tax firm will provide its calculations, together with detailed supporting documentation, to the Company and Executive as soon as practicable following order: its engagement. If a reduced Payment is made or provided and, through error or otherwise, that Payment, when aggregated with other payments and benefits from the Company (1or its affiliates) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as used in determining if a “parachute payment,exists, exceeds one dollar (4$1.00) the acceleration of vesting of any equity awards that are optionsless than three times Executive’s base amount, and (5) the acceleration of vesting of any other equity awards. Within any then Executive shall immediately repay such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject excess to the immediately preceding sentence, in the reverse order of the date of grantCompany.

Appears in 1 contract

Samples: Employment Agreement (Property Solutions Acquisition Corp.)

Section 280G. (a) Notwithstanding any other provision of under this Agreement Agreement, in the event that the Executive becomes entitled to the contrary, if receive or receives any payments made or benefits provided pursuant to under this Agreement or otherwise from under any other plan, agreement, program or arrangement with the Company or any person Affiliate of the Company (collectively, the “Payments”), that may separately or entity are considered in the aggregate constitute “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and the Treasury regulations promulgated thereunder (“Code Section 280G”) and it is determined that, less but for this Section 5(a), any of the Payments will be subject to any excise tax pursuant to Code Section 4999 or any similar or successor provision (iii) the amount of federal and state income taxes payable with respect “Excise Tax”), the Company shall pay to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in either (i) and the full amount of the Payments or (ii) above an amount equal to the Payments reduced by Section 4999 the minimum amount necessary to prevent any portion of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the Payments from being an Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “excess parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Code Section 409A 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by the Executive, on an after-tax basis (with consideration of all taxes incurred in connection with the Payments, including the Excise Tax), of the greatest amount of Payments notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. For purposes of determining whether the Executive would receive a greater after-tax benefit from the Capped Payments than from receipt of the full amount of the Payments and then for purposes of Section 5(c) below (if applicable), the Executive shall be deemed to pay federal, state and local taxes at the highest marginal rate of taxation for the applicable calendar year. (b) All computations and determinations by Section 5(a) and Section 5(c) shall be made and reported in writing to the Company and the Executive by a third party service provider selected by the Company (the “Tax Advisor”), and all such computations and determinations shall be conclusive and binding on the Company and the Executive. For purposes of such calculations and determinations, the Tax Advisor may rely on reasonable, good faith interpretations concerning the application of Code Section 280G and Code Section 4999. The Company and the Executive shall furnish to the Tax Advisor such information and documents as the Tax Advisor may reasonably request in order to make their required calculations and determinations. The Company shall bear all fees and expenses charged by the Tax Advisor in connection with respect to amounts that are. its services. (c) In the event that acceleration of compensation from equity awards Section 5(a) applies and a reduction is required to be reduced, such acceleration of vesting will be canceled, subject applied to the immediately preceding sentencePayments thereunder, the Payments shall be reduced by the Company in a manner and order of propriety that provides the Executive with the largest net after-tax value; provided, that payments of equal after-tax present value shall be reduced in the reverse order of payment. Notwithstanding anything to the date contrary herein, any such reduction shall be structured in a manner intended to comply with the requirements of grant.Code Section 409A.

Appears in 1 contract

Samples: Change in Control Agreement (Qorvo, Inc.)

Section 280G. Notwithstanding any other provision In the event that part or all of the consideration, compensation or benefits to be paid to Employee under this Agreement together with the aggregate present value of payments, consideration, compensation and benefits under all other plans, arrangements and agreements applicable to Employee (collectively, the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person or entity are considered Total Payments”) constitute “excess parachute payments” under Section 280G 280G(b) of the Code subject to an excise tax under Section 4999 of the Code, then such parachute payments will the Total Payments to be limited made to Employee shall be reduced, but only to the greatest extent Employee would retain a greater amount on an after-tax basis than he would retain absent such reduction, such that the value of the Total Payments that Employee is entitled to receive shall be $1 less than the maximum amount which Employee may receive without becoming subject to the excise tax or resulting in a disallowance of a deduction of the payment of such amount by the Company under Section 280G. For purposes of this Section 27, the determination of whichever amount is greater on an after-tax basis shall be (i) based on maximum federal, state and local income and employment tax rates and the tax that would be imposed on Employee pursuant to Section 4999, and (ii) made at Company expense by independent accountants selected by the Company. If the determination made pursuant to this Section 27 results in a reduction of the payments that would otherwise be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such sectionEmployee, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of in payments due under this Agreement will mean the sum of (i) the total amounts payable shall be first applied to the Executive under this Agreement, plus (ii) all reduce any cash severance payments that Employee would otherwise be entitled to receive hereunder and shall thereafter be applied to reduce other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise in a manner that would constitute a “parachute payment” within the meaning of not result in subjecting Employee to additional taxation under Section 280G 409A of the Code, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Appears in 1 contract

Samples: Employment Agreement (Team Health Holdings Inc.)

Section 280G. Notwithstanding any other provision of this Agreement anything to the contrarycontrary in this Agreement, if payments made or benefits provided pursuant to this Agreement or otherwise from Section 5.9 shall apply in the Company or any person or entity are considered “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum event of (i) a “change in the total amounts payable to ownership or effective control” of the Executive under this Agreement, plus Company or (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute paymentchange in the ownership of a substantial portion of the assetsof the Company, each within the meaning of Section 280G of the CodeCode (collectively, less (iii) the amount of federal an “Excise Tax Event”). If an Excise Tax Event is consummated, and state income taxes payable as a result any payments and benefits provided for in this Agreement, together with respect to the foregoing calculated at the maximum marginal income tax rate for each year in any other payments and benefits which the foregoing will be paid Executive has the right to Executive receive from the Company or any of its affiliates, would constitute a “parachute payment” (based upon as defined in Section 280G(b)(2) of the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employmentCode), less (iv) the amount of excise taxes imposed with respect to then the payments and benefits described provided for in this Agreement shall be either (ia) reduced (but not below zero) so that the present value of such total amounts and benefits received by the Executive from the Company and its affiliates will be one dollar ($1.00) less than three times the Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and (ii) above so that no portion of such amounts and benefits received by the Executive shall be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), or (b) paid in full, whichever produces the better net after-tax position to the Executive (taking into account any applicable Excise Tax and any other applicable taxes). The determination as to whether reduction of payments and to what extent payments are required to be reduced in accordance with this Section 6.9 will benefits hereunder, if applicable, shall be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) by reducing the amounts of any cash severancepayments or benefits that would not constitute deferred compensation under Section 409A, to the extent necessary to decrease the payments subject to the Excise Tax, as agreed by the Company and the Executive; (2) any other next, by reducing, payments or benefits to be paid in cash amount payable hereunder and that 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 Executivethe extent necessary, through to such payment or benefit that would be made first in time); and (3) finally, by reducing any non-cash or in-kind benefit valued to be provided hereunder and that constitute deferred compensation under Section 409A in a similar order to that described in clause (2). The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its affiliates) used in determining if a “parachute payment,exists, exceeds one dollar (4$1.00) less than three times the acceleration of vesting of Executive’s base amount, then the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 5.9 shall require the Company to be responsible for, or have any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first liability or obligation with respect to amounts that are not “deferred compensation” within to, the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grantExecutive’s Excise Tax liabilities.

Appears in 1 contract

Samples: Employment Agreement (Seventy Seven Energy Inc.)

Section 280G. Notwithstanding any other provision In the event that part or all of the consideration, compensation or benefits to be paid to Employee under this Agreement together with the aggregate present value of payments, consideration, compensation and benefits under all other plans, arrangements and agreements applicable to Employee (collectively, the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person or entity are considered Total Payments”) constitute “excess parachute payments” under Section 280G 280G(b) of the Code subject to an excise tax under Section 4999 of the Code, then such parachute payments will the Total Payments to be limited made to Employee shall be reduced, but only to the greatest extent Employee would retain a greater amount on an after-tax basis than he would retain absent such reduction, such that the value of the Total Payments that Employee is entitled to receive shall be $1 less than the maximum amount which Employee may receive without becoming subject to the excise tax or resulting in a disallowance of a deduction of the payment of such amount by the Company under Section 280G. For purposes of this Section 27, the determination of whichever amount is greater on an after-tax basis shall be (i) based on maximum federal, state and local income and employment tax rates and the tax that would be imposed on Employee pursuant to Section 4999 and (ii) made at Company expense by independent accountants selected by the Company. If the determination made pursuant to this Section 27 results in a reduction of the payments that would otherwise be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such sectionEmployee, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of in payments due under this Agreement will mean the sum of (i) the total amounts payable shall be first applied to the Executive under this Agreement, plus (ii) all reduce any cash severance payments that Employee would otherwise be entitled to receive hereunder and shall thereafter be applied to reduce other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise in a manner that would constitute a “parachute payment” within the meaning of not result in subjecting Employee to additional taxation under Section 280G 409A of the Code, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Appears in 1 contract

Samples: Employment Agreement (Team Health Holdings Inc.)

Section 280G. Notwithstanding any other provision of this Agreement letter or any other plan, arrangement or agreement to the contrary, if in the event that: (a) the aggregate payments made or benefits provided pursuant or to this Agreement or otherwise from be provided by the Company or any person its affiliates to you or entity for your benefit pursuant to the terms of this letter or otherwise that are considered deemed to be “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less Code or any successor thereto (iii“Change of Control Benefits”) the amount would be deemed to include an “excess parachute payment” under Section 280G of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at (or any successor provision thereto); and (b) if such Change of Control Benefits were reduced to an amount (the time of termination of Executive’s employment“Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three (iv3) times your “base amount,” as determined in accordance with Section 280G of the amount of excise taxes imposed with respect to the payments and benefits described in 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 local income taxes times the Non-Triggering Amount would be greater than (ii) above the aggregate value of the Change of Control Benefits (without such reduction) minus (x) the aggregate amount of tax required to be paid by you thereon by Section 4999 of the Code. The determination as to whether Code (or any successor provision thereto) and to what extent payments are required to any similar excise tax imposed by state or local law and further minus (y) the product of the Change of Control Benefits times the aggregate marginal rate of any applicable federal, state and local income taxes times the Non-Triggering Amount; then (d) the Change of Control Benefits shall be reduced in accordance with this Section 6.9 will be made at to the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”)Non-Triggering Amount. In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firmsuch event, the amount of such underpayment or overpayment will forthwith Aggregate Payments shall be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur reduced in the following order: (1A) any cash severance, payments not subject to Section 409A of the Code; (2B) any other cash amount payable payments subject to Executive, Section 409A of the Code; (3C) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, equity-based payments and acceleration; and (5D) non-cash forms of benefits. To the acceleration of vesting of extent any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards payment is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentencemade over time (e.g., in installments, etc.), then the payments shall be reduced in reverse order of the date of grantchronological order.

Appears in 1 contract

Samples: Employment Agreement (WisdomTree Investments, Inc.)

Section 280G. (a) Notwithstanding any other provision of this Agreement anything to the contrary, if payments made or benefits provided pursuant to contrary contained in this Agreement or otherwise from in any other agreement entered into by and between the Executive, on the one hand, and the Company or any person of its affiliates, on the other hand, or entity are considered in any incentive arrangement or plan (including equity arrangements and plans) offered by the Company or its affiliates, in the event that any amount or benefit paid or provided (or to be paid or provided) to the Executive pursuant to this Agreement, taken together with any other amounts or benefits paid or provided (or to be paid or provided) to the Executive by the Company or its affiliates (collectively, the Covered Payments”), would constitute an “excess parachute paymentspaymentunder as defined in Section 280G of the Code, then such parachute payments will be limited and would thereby subject the Executive to the greatest amount that may be paid to Executive an excise tax under Section 280G 4999 of the Code without causing any loss (the “Excise Tax”), then the provisions of deduction to this Section 17 will apply. If the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” aggregate present value (as determined for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iii) of the Covered Payments exceeds the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will that can be paid to the Executive (based upon without the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment)Executive incurring an Excise Tax, less (iv) the amount of excise taxes imposed with respect then, solely to the payments extent that the Executive would be better off on an after-tax basis (taking into account all federal, state, and benefits described in (ilocal taxes, including income, employment, and excise taxes) and (ii) above by Section 4999 receiving the maximum portion of the Code. The determination as Covered Payments that may be made without the Executive becoming subject to whether and the Excise Tax, the amounts payable to what extent the Participant under this Agreement (or under any other agreement, arrangement, or plan) will be reduced (but not below zero) to the maximum amount that may be paid without the Executive becoming subject to the Excise Tax (such reduced payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm referred to as may be designated by the Company prior to a change in control (the “Accounting FirmPayment Cap”). In the event of any mistaken underpayment or overpayment under this Agreement, that the Executive receives reduced payments and benefits as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) a result of the applicable Federal rate provided application of this Section 17, reduction will be made in accordance with the following rules: (i) first, reductions will first be made from payments and benefits that are determined not to be nonqualified deferred compensation for in purposes of Section 7872(f)(2) 409A of the Code. Any reduction , and then will be made (to the extent necessary) out of payments and benefits that are subject to Section 409A of the Code; (ii) second, within such categories, reductions will first be made to cash severance payments before being made to other cash payments, and then last to payments in connection with equity awards; and (iii) third, within such categories, reductions will be made to payments required and benefits in reverse chronological order (i.e., amounts due to be paid later will be reduced before amounts due to be paid sooner). (b) The accounting firm engaged by the Company for general tax purposes or such other nationally-recognized accounting firm selected by the Company will perform the calculations contemplated by this Section 6.9 17. The Company and the Executive agree to provide such firm with such information and documents as such firm may reasonably request in order to perform such calculations. The Company will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration bear all expenses of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first firm with respect to amounts the determinations required to be made hereunder. The accounting firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and the Executive. If the accounting firm determines that are not “deferred compensation” within the meaning of Section 409A and then no Excise Tax is payable with respect to amounts a payment, either before or after the application of the Payment Cap, then it will furnish the Company with documentation reasonably acceptable to the Company that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting no Excise Tax will be canceled, subject imposed with respect to the immediately preceding sentence, in the reverse order such payments. Any good faith determinations of the date of grant.accounting firm made hereunder will be final, binding, and conclusive upon the Company and the Executive. ​

Appears in 1 contract

Samples: Employment Agreement (G Iii Apparel Group LTD /De/)

Section 280G. Notwithstanding any other provision of this Agreement, in the event that the amount of payments or other benefits payable to Lxxxxx under this Agreement to (including, without limitation, the contraryacceleration of any payment or the accelerated vesting of any payment or other benefit), if payments made together with any payments, awards or benefits provided pursuant to this Agreement payable under any other plan, program, arrangement or otherwise from agreement maintained by the Company Corporation or any person one of its Subsidiaries or entity are considered other Affiliates, would constitute an excess parachute paymentspaymentunder (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which shall be reduced (by the Executive receives or then is entitled minimum possible amounts) in the order set forth below until no amount payable to receive from the Company Lxxxxx under this Agreement or otherwise that would constitute a constitutes an excess parachute payment” (within the meaning of Section 280G of the Code); provided, less however, that no such reduction shall be made if the net after-tax amount (iiiafter taking into account federal, state, local or other income, employment and excise taxes) to which Lxxxxx would otherwise be entitled without such reduction would be greater than the net after-tax amount (after taking into account federal, state, local or other income, employment and excise taxes) to Lxxxxx resulting from the receipt of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Codewith such reduction. The determination as If any payments or benefits payable to whether and to what extent payments Lxxxxx are required to be reduced pursuant to this Section, such payments and/or benefits to Lxxxxx shall be reduced in accordance the following order: first, payments that are payable in cash, with amounts that are payable last reduced first; second, payments due in respect of any equity or equity derivatives included at their full value under Section 280G (rather than their accelerated value); third, payments due in respect of any equity or equity derivatives valued at accelerated value under Section 280G, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); and fourth, all other non-cash benefits. All determinations required to be made under this Section 6.9 will 7(g), including whether a payment would result in an “excess parachute payment” and the assumptions to be utilized in arriving at such determinations, shall be made at the Company’s expense by a nationally recognized certified public an accounting firm as may be designated by the Company prior to a change in control Corporation (the “Accounting Firm”)) which shall provide detailed supporting calculations both to the Corporation and Lxxxxx as requested by the Corporation or Lxxxxx. In All fees and expenses of the event of any mistaken underpayment or overpayment under this AgreementAccounting Firm shall be borne solely by the Corporation and shall be paid by the Corporation. Absent manifest error, as determined all determinations made by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by Firm under this Section 6.9 will occur in 7(g) shall be final and binding upon the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, Corporation and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grantLxxxxx.

Appears in 1 contract

Samples: Employment Agreement (B&G Foods, Inc.)

Section 280G. Notwithstanding (a) If any other provision of the payments or benefits received or to be received by the Executive (including, without limitation, any payment or benefits received in connection with a Change in Control or the Executive’s termination of employment, whether pursuant to the terms of this Agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person other plan, arrangement or entity are considered agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and will be subject to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), less then the Executive shall receive the greatest of the following, whichever gives the Executive the highest net after-tax amount (iii) the amount of federal after taking into account federal, state, local and state income taxes payable Social Security taxes, and with respect to the foregoing calculated at 280G Payments, the maximum marginal income tax rate for each year Excise Tax): (1) the 280G Payments or (2) one dollar less than the amount of the 280G Payments that would subject the Executive to the Excise Tax (the “Safe Harbor Amount”). If a reduction in the 280G Payments is necessary so that the 280G Payments equal the Safe Harbor Amount and none of the 280G Payments constitute a deferral of compensation within the meaning of and subject to Section 409A (“Nonqualified Deferred Compensation”), then the 280G Payments shall be reduced in the order in which the foregoing will be paid to Executive (based upon the rate in effect for such year as they are set forth in Section 5.4 above (i.e., the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect cash severance payable to the payments Executive pursuant to Section 5.4(a)(i) shall be reduced first, followed by a reduction in the payment pursuant to Section 5.4(a)(ii) if necessary, etc.). All calculations and benefits described in determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Company (ithe “Tax Counsel”) whose determinations shall be conclusive and (ii) above 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 determination Company and the Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to whether and to what extent payments are required to be reduced in accordance with make its determinations under this Section 6.9 will be made at 5.9. The Company shall bear all costs the Company’s expense by a nationally recognized certified public accounting firm as Tax Counsel may be designated by reasonably incur in connection with its services. (b) The Executive hereby agrees with the Company prior and any successor thereto to a change in control (the “Accounting Firm”). In the event of good faith consider and take steps commonly used to minimize or eliminate any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensationpayments” within the meaning of Section 409A and then with respect 280G of the Code if requested to amounts do so by the Company or any successor thereto; provided, however, that are. In the event that acceleration of compensation from equity awards is foregoing language shall neither require the Executive to be reducedtake or not take any specific action in furtherance thereof nor contravene, such acceleration of vesting will be canceled, subject limit or remove any right or privilege provided to the immediately preceding sentence, in the reverse order of the date of grantExecutive under this Agreement.

Appears in 1 contract

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

Section 280G. Notwithstanding (a) If any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant received or to be received by Executive under this Agreement or otherwise from otherwise, including, without limitation, the Company severance benefits received in connection with a Change in Control or any person or entity are considered Executive’s termination of employment under Section 5.3 (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and would, but for this Section 22, be subject to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then prior to making the 280G Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to Executive of the 280G Payments after payment of the Excise Tax to (ii) the Net Benefit to Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (i) above is less than the amount under (iiiii) above, the 280G Payments will be reduced to the minimum extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. For purposes of this Agreement, “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 22 shall be made first from any cash severance, then from any payment in respect of an equity award that is not covered by Treas. Reg. Section 1.280G-1 Q/A-24(b) or (c), then from any payment in respect of an equity award that is covered by Treas. Reg. Section 1.280G-1 Q/A-24(c), in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the determination. (b) Any determination as to whether 280G Payments shall be reduced pursuant to this Section 22, and the amount of federal any such reduction, shall be made by the Company’s independent public accountants or another certified public accounting firm or consulting firm of national reputation designated by the Company (the “Tax Counsel”). The Tax Counsel’s determinations shall be final and state income taxes payable with respect to binding on the foregoing calculated at Parties. For purposes of making the maximum marginal income tax rate for each year in which calculations and determinations required by this Section 22, the foregoing will be paid to Executive (based upon Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the rate in effect for such year as set forth in the Code at the time application of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments Section 280G and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination Executive and Company shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to whether and to what extent payments are required to be reduced in accordance with make its determinations under this Section 6.9 will be made at 22. Company shall bear all costs the Company’s expense by a nationally recognized certified public accounting firm as Tax Counsel may be designated by the Company prior to a change reasonably incur in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, connection with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grantits services.

Appears in 1 contract

Samples: Employment Agreement (Surf Air Mobility Inc.)

Section 280G. Notwithstanding any other provision of this Agreement, in the event that the amount of payments or other benefits payable to Executive under this Agreement to (including, without limitation, the contraryacceleration of any payment or the accelerated vesting of any payment or other benefit), if payments made together with any payments, awards or benefits provided pursuant to this Agreement payable under any other plan, program, arrangement or otherwise from agreement maintained by the Company Corporation or any person one of its Subsidiaries or entity are considered “other Affiliates, would constitute an "excess parachute payments” under payment" (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code")), then such parachute payments will and benefits shall be limited to reduced (by the greatest minimum possible amounts) in the order set forth below until no amount that may be paid payable to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “constitutes an "excess parachute payment" (within the meaning of Section 280G of the Code); provided, less however, that no such reduction shall be made if the net after-tax amount (iiiafter taking into account federal, state, local or other income, employment and excise taxes) to which Executive would otherwise be entitled without such reduction would be greater than the net after-tax amount of federal (after taking into account federal, state, local or other income, employment and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid excise taxes) to Executive (based upon resulting from the rate in effect for receipt of such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Codewith such reduction. The determination as If any payments or benefits payable to whether and to what extent payments Executive are required to be reduced in accordance with pursuant to this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this AgreementParagraph, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid payments and/or benefits to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur shall be reduced in the following order: (1) any cash severancefirst, (2) any other cash amount payments that are payable to Executivein cash, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting with amounts that are payable last reduced first; second, payments due in respect of any equity awards that are optionsor equity derivatives included at their full value under Section 280G (rather than their accelerated value); third, and (5) the acceleration of vesting payments due in respect of any equity or equity derivatives valued at accelerated value under Section 280G, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); and fourth, all other equity awardsnon-cash benefits. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is All determinations required to be reducedmade under this Paragraph 7(g), including whether a payment would result in an "excess parachute payment" and the assumptions to be utilized in arriving at such acceleration of vesting will determinations, shall be canceled, subject made by an accounting firm designated by the Corporation (the "Accounting Firm") which shall provide detailed supporting calculations both to the immediately preceding sentence, in Corporation and Executive as requested by the reverse order Corporation or Executive. All fees and expenses of the date of grantAccounting Firm shall be borne solely by the Corporation and shall be paid by the Corporation. Absent manifest error, all determinations made by the Accounting Firm under this Paragraph 7(g) shall be final and binding upon the Corporation and Executive.

Appears in 1 contract

Samples: Employment Agreement (B&G Foods, Inc.)

Section 280G. Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person or entity are considered (1) Executive is a parachute paymentsDisqualified Individualunder Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under (as defined in Section 280G of the Code and any applicable regulations thereunder (“Section 280G”)) and (2) any of the payments or benefits received or to be received by Executive (including, without causing limitation, any loss payment or benefits received in connection with a Change in Control (as defined below) or Executive’s termination of deduction employment, whether pursuant to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes terms of this Agreement will mean the sum of (ior any other plan, arrangement or agreement, or otherwise) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute paymentpayments” within the meaning of Section 280G of the CodeCode (all such payments collectively referred to herein as the “280G Payments”) and would, less (iiibut for this Section 6(e) the amount of federal and state income taxes payable with respect be subject to the foregoing calculated at the maximum marginal income excise tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by under Section 4999 of the Code. The determination 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 excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as to whether and to what extent payments are required to the “Excise Tax”), then such 280G Payments shall be reduced in accordance a manner determined by the Company (by the minimum possible amounts) that is consistent with the requirements of Section 409A until no amount payable to Executive will be subject to the Excise Tax, if and only if such reduction produces a better net after-tax position (taking into account any applicable Excise Tax and any applicable income tax) than if the total payments owed to Executive were paid in full and subject to such tax. If two economically equivalent amounts are subject to reduction but are payable at different times, the amounts shall be reduced (but not below zero) on a pro rata basis. As used in this Section 6.9 will be made at (6)(e), a “Change in Control” shall mean a transaction that constitutes a change in the ownership of the Company, a change in effective control of the Company, or a change in the ownership of a substantial portion of the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change assets, in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the each case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of such term under Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.280G.

Appears in 1 contract

Samples: Executive Employment Agreement (bioAffinity Technologies, Inc.)

Section 280G. Notwithstanding (a) If any other provision of the payments or benefits received or to be received by the Executive (including, without limitation, any payment or benefits received in connection with the Executive’s termination of employment, whether pursuant to the terms of this Agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person other plan, arrangement, or entity are considered agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and will be subject to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), less (iii) the Company shall pay to the Executive, no later than the time such Excise Tax is required to be paid by the Executive or withheld by the Company, an additional amount equal to the sum of the Excise Tax payable by the Executive, plus the amount of federal necessary to put the Executive in the same after-tax position (taking into account any and state income all applicable federal, state, and local excise, income, or other taxes payable with respect to the foregoing calculated at the maximum marginal income highest applicable rates on such 280G Payments and on any payments under this Section 4.8 or otherwise) as if no Excise Tax had been imposed. (b) All calculations and determinations under this Section 4.8 shall be made by an independent accounting firm or independent tax rate counsel appointed by the Company (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Company and the Executive for each year in which all purposes. For purposes of making the foregoing will be paid to Executive (based upon calculations and determinations required by this Section 4.8, the rate in effect for such year as set forth in Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the Code at the time application of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments Section 280G and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination Company and the Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to whether and to what extent payments are required to be reduced in accordance with make its determinations under this Section 6.9 will be made at 4.8. The Company shall bear all costs the Company’s expense by a nationally recognized certified public accounting firm as Tax Counsel may be designated by the Company prior to a change reasonably incur in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, connection with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grantits services.

Appears in 1 contract

Samples: Employment Agreement (Royale Energy, Inc.)

Section 280G. Notwithstanding In the event that it is determined by the Company in its sole discretion that any other provision of this Agreement payment or benefit to the contrary, if payments made or benefits provided pursuant to Employee under this Agreement or otherwise otherwise, either cash or non-cash, that Employee has the right to receive from the Company Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, equity grants or any person or entity are considered benefits payable to Employee under any plan for the benefit of employees, would constitute an excess parachute paymentspaymentunder (as defined in Section 280G of the Code), then such parachute then, notwithstanding any contrary provisions in any plan, program or policy of the Company, the Company shall reduce Employee’s payments will be limited and benefits payable under this Agreement to the greatest amount extent necessary so that may no portion thereof shall be paid to Executive under Section 280G of the Code without causing any loss of deduction subject to the Company Group under such sectionexcise tax imposed by Code Section 4999, but only if, by reason of such reduction, the net after tax benefit Net After-Tax Benefit to Executive will the Employee shall exceed the net after tax benefit Net After-Tax Benefit if such reduction were not made. “Net after tax benefitAfter-Tax Benefit” for these purposes of this Agreement will shall mean the sum of (i) the total amounts amount payable to the Executive Employee under this Agreement, plus (ii) all other payments and benefits which the Executive Employee receives or is then is entitled to receive from the Company that, alone or otherwise that in combination with the payments and benefits payable under this Agreement, would constitute a “parachute payment” within the meaning of Code Section 280G of the CodeG, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will shall be paid to Executive Employee (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employmentthe payment under this Agreement), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Code Section 4999 4999. The parachute payments reduced shall be those that provide Employee the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be reduced pro rata; provided, however, that Employee may elect to have the noncash payments and benefits due to Employee reduced (or eliminated) prior to any reduction of the Codecash payments due under this Agreement. The determination as to whether and to what extent payments are All determinations required to be reduced in accordance with made under this Section 6.9 will shall be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by tax counsel reasonably acceptable to Employee and the Company prior or any other third party acceptable to a change in control the Employee and the Company (the Accounting FirmTax Counsel”). In Tax Counsel shall provide detailed supporting calculations both to the event Company and Employee. All fees and expenses of any mistaken underpayment or overpayment under this Agreement, as determined Tax Counsel shall be borne solely by the Accounting FirmCompany. Absent manifest error, any determination by Tax Counsel shall be binding upon the amount Company and Employee. For purposes of such underpayment or overpayment will forthwith be paid determining whether and the extent to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in which any payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as would constitute a “parachute payment,” (4i) the acceleration of vesting no portion of any equity awards payments or benefits that are options, Employee shall have waived at such time and (5) the acceleration of vesting of any other equity awards. Within any in such category of payments and benefits, manner as not to constitute a reduction will occur first with respect to amounts that are not deferred compensationpayment” within the meaning of Code Section 409A and then with respect to amounts that are. In 280G(b) shall be taken into account, (ii) no portion of the event that acceleration of compensation from equity awards is to payments shall be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentencetaken into account which, in the reverse order opinion of Tax Counsel, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2) (including by reason of Code Section 280G(b)(4)(A)) and, in calculating the excise tax, no portion of such payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B), in excess of the date “base amount” (within the meaning set forth in Code Section 280G(b)(3)) allocable to such reasonable compensation, and (iii) the value of grantany noncash benefit or any deferred payment or benefit included in the payments shall be determined by Tax Counsel in accordance with the principles of Code Sections 280G(d)(3) and (4).

Appears in 1 contract

Samples: Employment Agreement (Signature Group Holdings, Inc.)

Section 280G. Notwithstanding In the event that it is determined by the Company in its sole discretion that any other provision of this Agreement payment or benefit to the contrary, if payments made or benefits provided pursuant to Executive under this Agreement or otherwise otherwise, either cash or non-cash, that Executive has the right to receive from the Company Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, equity grants or any person or entity are considered benefits payable to Executive under any plan for the benefit of employees, would constitute an excess parachute paymentspaymentunder (as defined in Section 280G of the Code), then such parachute then, notwithstanding any contrary provisions in any plan, program or policy of the Company, the Company shall reduce Executive’s payments will be limited and benefits payable under this Agreement to the greatest amount extent necessary so that may no portion thereof shall be paid to Executive under Section 280G of the Code without causing any loss of deduction subject to the Company Group under such sectionexcise tax imposed by Code Section 4999, but only if, by reason of such reduction, the net after tax benefit Net After-Tax Benefit to the Executive will shall exceed the net after tax benefit Net After-Tax Benefit if such reduction were not made. “Net after tax benefitAfter-Tax Benefit” for these purposes of this Agreement will shall mean the sum of (i) the total amounts amount payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or is then is entitled to receive from the Company that, alone or otherwise that in combination with the payments and benefits payable under this Agreement, would constitute a “parachute payment” within the meaning of Code Section 280G of the CodeG, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will shall be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employmentthe payment under this Agreement), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Code Section 4999 4999. The parachute payments reduced shall be those that provide Executive the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be reduced pro rata; provided, however, that Executive may elect to have the noncash payments and benefits due to Executive reduced (or eliminated) prior to any reduction of the Codecash payments due under this Agreement. The determination as to whether and to what extent payments are All determinations required to be reduced in accordance with made under this Section 6.9 will shall be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by tax counsel reasonably acceptable to Executive and the Company prior or any other third party acceptable to a change in control the Executive and the Company (the Accounting FirmTax Counsel”). In Tax Counsel shall provide detailed supporting calculations both to the event Company and Employee. All fees and expenses of any mistaken underpayment or overpayment under this Agreement, as determined Tax Counsel shall be borne solely by the Accounting FirmCompany. Absent manifest error, any determination by Tax Counsel shall be binding upon the amount Company and Employee. For purposes of such underpayment or overpayment will forthwith be paid determining whether and the extent to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in which any payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as would constitute a “parachute payment,” (4i) the acceleration of vesting no portion of any equity awards payments or benefits that are optionsExecutive shall have waived at such time and in such manner as not to constitute a "payment" within the meaning of Code Section 280G(b) shall be taken into account, and (5ii) no portion of the acceleration payments shall be taken into account which, in the opinion of vesting of any other equity awards. Within any such category of payments and benefitsTax Counsel, does not constitute a reduction will occur first with respect to amounts that are not deferred compensationparachute payment” within the meaning of Code Section 409A and then with respect to amounts that are. In 280G(b)(2) (including by reason of Code Section 280G(b)(4)(A)) and, in calculating the event that acceleration excise tax, no portion of compensation from equity awards is to such payments shall be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentencetaken into account which, in the reverse order opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B), in excess of the date “base amount” (within the meaning set forth in Code Section 280G(b)(3)) allocable to such reasonable compensation, and (iii) the value of grantany noncash benefit or any deferred payment or benefit included in the payments shall be determined by Tax Counsel in accordance with the principles of Code Sections 280G(d)(3) and (4).

Appears in 1 contract

Samples: Evergreen Employment Agreement (Signature Group Holdings, Inc.)

Section 280G. Notwithstanding any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise from the Company or any person or entity are considered “parachute payments” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iii) the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.rate

Appears in 1 contract

Samples: Executive Employment Agreement (Oncobiologics, Inc.)

Section 280G. (a) Notwithstanding any other provision provisions of this Agreement to the contrary, if payments made in the event that it shall be determined that any payment or benefits provided distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise from (the Company or any person or entity are considered parachute payments” under Section 280G of the CodePayments”), then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a an excess parachute payment” within the meaning of Section 280G of the Code, less the Company shall reduce (iiibut not below zero) the aggregate present value of the Payments under the Agreement to the Reduced Amount (as hereinafter defined), if reducing the Payments under this Agreement will provide the Executive with a greater net after- tax amount than would be the case if no such reduction was made. The Payments shall be reduced as described in the preceding sentence only if (I) the net amount of the Payments, as so reduced (and after subtracting the net amount of federal, state and local income and payroll taxes on the reduced Payments), is greater than or equal to (2) the net amount of the Payments without such reduction (but after subtracting the net amount of federal, state and local income and payroll taxes on the Payments and the amount of federal and state income taxes payable Excise Tax (as hereinafter defined) to which the Executive would be subject with respect to the foregoing calculated at unreduced Payments). Any reduction shall be made in accordance with Section 409A of the maximum marginal income tax rate for each year Code. (b) The “Reduced Amount” shall be an amount expressed in which present value that maximizes the foregoing will aggregate present value of Payments without causing any Payment under this Agreement to be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect subject to the payments and benefits described Excise Tax, determined in (iaccordance with Section 280G(d)(4) and (ii) above by of the Code. The term “Excise Tax” means the excise tax imposed under Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance , together with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment interest or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first penalties imposed with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grantexcise tax.

Appears in 1 contract

Samples: Employment Agreement (News Corp)

Section 280G. (a) Notwithstanding any other provision of this Agreement anything to the contrary, if payments made or benefits provided pursuant to contrary contained in this Agreement or otherwise from in any other agreement entered into by and between the Executive, on the one hand, and the Company or any person of its affiliates, on the other hand, or entity are considered in any incentive arrangement or plan (including equity arrangements and plans) offered by the Company or its affiliates, in the event that any amount or benefit paid or provided (or to be paid or provided) to the Executive pursuant to this Agreement, taken together with any other amounts or benefits paid or provided (or to be paid or provided) to the Executive by the Company or its affiliates (collectively, the Covered Payments”), would constitute an “excess parachute paymentspaymentunder as defined in Section 280G of the Code, then such parachute payments will be limited and would thereby subject the Executive to the greatest amount that may be paid to Executive an excise tax under Section 280G 4999 of the Code without causing any loss of deduction to (the Company Group under such section“Excise Tax”), but only if, by reason of such reduction, then the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes provisions of this Agreement will mean the sum of paragraph (i) will apply. If the total amounts payable to the Executive under this Agreement, plus aggregate present value (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning as determined for purposes of Section 280G of the Code, less (iii) of the Covered Payments exceeds the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will that can be paid to the Executive (based upon without the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment)Executive incurring an Excise Tax, less (iv) the amount of excise taxes imposed with respect then, solely to the payments extent that the Executive would be better off on an after-tax basis (taking into account all federal, state, and benefits described in (ilocal taxes, including income, employment, and excise taxes) and (ii) above by Section 4999 receiving the maximum portion of the Code. The determination as Covered Payments that may be made without the Executive becoming subject to whether and the Excise Tax, the amounts payable to what extent the Participant under this Agreement (or under any other agreement, arrangement, or plan) will be reduced (but not below zero) to the maximum amount that may be paid without the Executive becoming subject to the Excise Tax (such reduced payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm referred to as may be designated by the Company prior to a change in control (the “Accounting FirmPayment Cap”). In the event of any mistaken underpayment or overpayment under this Agreement, that the Executive receives reduced payments and benefits as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) a result of the applicable Federal rate provided application of this paragraph (i), reduction will be made in accordance with the following rules: (i) first, reductions will first be made from payments and benefits that are determined not to be nonqualified deferred compensation for in purposes of Section 7872(f)(2) 409A of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and then will be made (5to the extent necessary) the acceleration of vesting of any other equity awards. Within any such category out of payments and benefits, a reduction will occur first with respect to amounts benefits that are not “deferred compensation” within the meaning of subject to Section 409A of the Code; (ii) second, within such categories, reductions will first be made to cash severance payments before being made to other cash payments, and then last to payments in connection with respect equity awards; and (iii) third, within such categories, reductions will be made to payments and benefits in reverse chronological order (i.e., amounts that are. In the event that acceleration of compensation from equity awards is due to be reduced, such acceleration of vesting paid later will be canceled, subject reduced before amounts due to the immediately preceding sentence, in the reverse order of the date of grantbe paid sooner).

Appears in 1 contract

Samples: Employment Agreement (G Iii Apparel Group LTD /De/)

Section 280G. (i) Notwithstanding any other provision of this Agreement to the contrary, except as provided below, if it is determined that the payments made or benefits provided pursuant to this which Employee will be entitled under Section 12 of the Agreement or otherwise from the Company under any other agreement, policy, plan, program or any person or entity are considered arrangement (a parachute payments” Payment”), would be subject to an excise tax (“Excise Tax”) under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), but for the application of this sentence, then such parachute payments the Payments will be limited reduced to the greatest amount minimum extent necessary (but in no event below zero) so that may be paid to Executive under Section 280G no portion of the Code without causing any loss of deduction to the Company Group under such sectionPayment, but only ifas so reduced, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. constitutes an Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “excess parachute payment” within the meaning of Section 280G of the Code. (ii) The limitation above will not apply if: the difference between (1) the present value of all payments to which Employee is entitled under Section 12 of the Agreement determined without regard to the limitation above, less less (2) the present value of all federal, state, and other income and excise taxes for which Employee is liable as a result of such payments; exceeds the difference between (1) the present value of all payments to which Employee is entitled under Section 12 of the Agreement calculated as if the limitation above applies, less (2) the present value of all federal, state, and other income and excise taxes for which Employee is liable as a result of such reduced payments. (iii) All determinations required to be made under this Section 21, including whether an Excise Tax is payable by the Employee and the amount of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment)Excise Tax, less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will shall be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In The Company shall direct the event Accounting Firm to submit its determination and detailed supporting calculations to the Company and the Employee within fifteen (15) calendar days after the date of the Employee’s termination of employment, and other such time or times as may be requested by the Company or the Employee. If the Accounting Firm determines that no Excise Tax is payable by the Employee, it shall, at the same time as it makes such determination, furnish the Employee with an opinion that the Employee has substantial authority not to report any Excise Tax on the Employee’s federal, state, local income or other tax return. The Company and the Employee shall each provide the Accounting Firm access to and copies of any mistaken underpayment books, records and documents in the possession of the Company or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the CompanyEmployee, as the case may be, reasonably requested by the Accounting Firm in connection with interest at one hundred twenty (120%) the preparation and issuance of the applicable Federal rate provided for determination contemplated by this Section 22. Any reasonable determination made by the Accounting Firm under this Section 22 shall be binding upon the Company and the Employee. All fees and expenses of the Accounting Firm shall be borne solely by the Company. (iv) The reduction of the amounts payable hereunder shall be made in a manner consistent with the requirements of Section 7872(f)(2) 409A of the Code. Any The reduction in payments required of the amounts payable hereunder, if applicable, shall be made by this Section 6.9 will occur in first reducing, but not below zero, any amounts due to the following order: (1) any cash severance, (2) any other cash amount payable Employee pursuant to Executive, (3) any benefit valued as the Company’s equity plans shall be reduced on a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that arepro-rata basis. In the event that acceleration following the reduction of compensation from equity awards is the amounts set forth in the preceding sentence, additional amounts payable to the participant must be reduced, such acceleration of vesting will the cash payments under Section 12 shall be canceledreduced on a pro-rata basis, subject to the immediately preceding sentence, in the reverse order of the date of grantbut not below zero.

Appears in 1 contract

Samples: Employment Agreement (Avi Biopharma Inc)

Section 280G. Notwithstanding In the event it shall be determined that any other provision payment or distribution to Executive or for Executive’s benefit that is in the nature of this Agreement to compensation and is contingent on a change in the contraryownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), if payments made whether paid or benefits provided payable pursuant to this Agreement or otherwise from the Company or any person or entity are considered (a “Payment”), would constitute a “parachute paymentspayment” under Section 280G of the Code, then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G 280G(b)(2) of the Code without causing any loss of deduction and would be subject to the Company Group under excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such sectionexcise tax, the “Excise Tax”), then the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after after-tax benefit to received by Executive will shall exceed the net after after-tax benefit received by Executive if no such reduction were not was made. Any reduction in the Payments shall be determined by the Company’s accounting firm and applied first against the latest scheduled cash payments; then current cash payments; then any equity or equity derivatives that are included under Section 280G of the Code at an accelerated value (and not at full value) shall be reduced with the highest value reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); finally any other non-cash benefits will be reduced.For purposes of this section, Net after net after-tax benefit” for purposes of this Agreement will shall mean the sum of (i) the total amounts payable to the Payments which Executive under this Agreement, plus (ii) all other payments and benefits which the Executive ​ ​ ​ receives or is then is entitled to receive from the Company or otherwise that would constitute a “parachute paymentpayments” within the meaning of Section 280G of the Code, less (iiiii) the amount of federal all federal, state and state local income taxes payable with respect to the foregoing Payments calculated at the maximum marginal income tax rate for each year in which the foregoing will Payments shall be paid to Executive (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of termination the first payment of Executive’s employmentthe foregoing), less (iviii) the amount of excise taxes Excise Taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the CodePayments. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by this Section 6.9 will occur in the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Appears in 1 contract

Samples: Employment Agreement (Smith & Nephew PLC)

Section 280G. Notwithstanding If any other provision of this Agreement payments or rights accruing to the contrary, if payments made or benefits provided pursuant to this Agreement or otherwise Executive from the Company or any person or entity are considered (the parachute payments” under Section 280G of the CodeTotal Payments”), then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which the Executive receives or then is entitled to receive from the Company or otherwise that would constitute a “parachute payment” within the meaning of (as defined in Code Section 280G G, and the regulations thereunder), then the Total Payments shall be reduced to the largest amount or greatest right that will result in no portion of the Total Payments being subject to an excise tax under Code Section 4999. The determination of whether any reduction in the Total Payments is to apply shall be made by the Company in good faith after consultation with the Executive, and such determination shall be conclusive and binding on the Executive. The Executive shall cooperate in good faith with the Company in making such determination and providing the necessary information for this purpose. The foregoing provisions of this Section 18(l) shall apply only if, after reduction for any applicable excise tax imposed by Code Section 4999 and any federal income tax imposed by the Code, the Total Payments accruing to the Executive would be less (iii) than the amount of federal and state income taxes payable with respect to the Total Payments as reduced under the foregoing calculated at provisions of this Section 18(l) and after reduction for only federal income taxes. To the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time extent reduction of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the any payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 6.9 will be made at the Company’s expense by a nationally recognized certified public accounting firm as may be designated by the Company prior to a change in control (the “Accounting Firm”). In the event of any mistaken underpayment or overpayment under this Agreement, as determined by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments is required by this Section 6.9 18(l) such that no portion of the Total Payments will occur be subject to the excise tax imposed by Code Section 4999, the Total Payments shall be reduced in the following order: (1i) severance benefits (with the last payments being reduced first); (ii) any cash severance, (2) any other cash amount transaction bonus that is or becomes payable to the Executive, ; (3iii) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards equity-based payments or benefits that are optionsdue to the Executive (with those that would otherwise last become vested being reduced first), and (5iv) all other payments or benefits due and owing to the acceleration Executive (with those that would otherwise be due last being reduced first). For the avoidance of vesting doubt, inclusion of any other equity awards. Within type of payment or benefit in the preceding sentence is intended to ensure an orderly reduction should such a reduction become necessary, and is not intended to imply that the Executive has an entitlement to any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grantpayment or benefit.

Appears in 1 contract

Samples: Employment Agreement (Galectin Therapeutics Inc)

Section 280G. Notwithstanding any other provision of this Agreement, in the event that the amount of payments or other benefits payable to Xxxxxxxx under this Agreement to (including, without limitation, the contraryacceleration of any payment or the accelerated vesting of any payment or other benefit), if payments made together with any payments, awards or benefits provided pursuant to this Agreement payable under any other plan, program, arrangement or otherwise from agreement maintained by the Company Corporation or any person one of its Subsidiaries or entity are considered other Affiliates, would constitute an excess parachute paymentspaymentunder (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), then such parachute payments will be limited to the greatest amount that may be paid to Executive under Section 280G of the Code without causing any loss of deduction to the Company Group under such section, but only if, by reason of such reduction, the net after tax benefit to Executive will exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” for purposes of this Agreement will mean the sum of (i) the total amounts payable to the Executive under this Agreement, plus (ii) all other payments and benefits which shall be reduced (by the Executive receives or then is entitled minimum possible amounts) in the order set forth below until no amount payable to receive from the Company Xxxxxxxx under this Agreement or otherwise that would constitute a constitutes an excess parachute payment” (within the meaning of Section 280G of the Code); provided, less however, that no such reduction shall be made if the net after-tax amount (iiiafter taking into account federal, state, local or other income, employment and excise taxes) to which Xxxxxxxx would otherwise be entitled without such reduction would be greater than the net after-tax amount (after taking into account federal, state, local or other income, employment and excise taxes) to Xxxxxxxx resulting from the receipt of federal and state income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing will be paid to Executive (based upon the rate in effect for such year as set forth in the Code at the time of termination of Executive’s employment), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Codewith such reduction. The determination as If any payments or benefits payable to whether and to what extent payments Xxxxxxxx are required to be reduced pursuant to this Section, such payments and/or benefits to Xxxxxxxx shall be reduced in accordance the following order: first, payments that are payable in cash, with amounts that are payable last reduced first; second, payments due in respect of any equity or equity derivatives included at their full value under Section 280G (rather than their accelerated value); third, payments due in respect of any equity or equity derivatives valued at accelerated value under Section 280G, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); and fourth, all other non-cash benefits. All determinations required to be made under this Section 6.9 will 7(g), including whether a payment would result in an “excess parachute payment” and the assumptions to be utilized in arriving at such determinations, shall be made at the Company’s expense by a nationally recognized certified public an accounting firm as may be designated by the Company prior to a change in control Corporation (the “Accounting Firm”)) which shall provide detailed supporting calculations both to the Corporation and Xxxxxxxx as requested by the Corporation or Xxxxxxxx. In All fees and expenses of the event of any mistaken underpayment or overpayment under this AgreementAccounting Firm shall be borne solely by the Corporation and shall be paid by the Corporation. Absent manifest error, as determined all determinations made by the Accounting Firm, the amount of such underpayment or overpayment will forthwith be paid to Executive or refunded to the Company, as the case may be, with interest at one hundred twenty (120%) of the applicable Federal rate provided for in Section 7872(f)(2) of the Code. Any reduction in payments required by Firm under this Section 6.9 will occur in 7(g) shall be final and binding upon the following order: (1) any cash severance, (2) any other cash amount payable to Executive, (3) any benefit valued as a “parachute payment,” (4) the acceleration of vesting of any equity awards that are options, Corporation and (5) the acceleration of vesting of any other equity awards. Within any such category of payments and benefits, a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grantXxxxxxxx.

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Samples: Employment Agreement (B&G Foods, Inc.)