Section 280G. If any payment or benefit Executive will or may receive from the Company or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment. If a reduction in the Payment is to be made so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executive.
Appears in 14 contracts
Samples: Executive Employment Agreement (Palisade Bio, Inc.), Executive Employment Agreement (Palisade Bio, Inc.), Executive Employment Agreement (Metacrine, Inc.)
Section 280G. If any payment or benefit that the Executive will or may receive from following a change of control of the Company Company, the Executive’s termination of employment, or otherwise otherwise, whether or not payable or provided under this Agreement (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will shall be equal reduced to the Reduced Amount (defined below)Amount. The “Reduced Amount” will shall be either (lA) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2B) the entire largest portion, up to and including the total amount, of the Payment, whichever amount of the amounts determined under (A) and (B), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the PaymentPayment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in the Payment payments or benefits constituting “parachute payments” is to be made necessary so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of outstanding equity awards other than stock options; (3) cancellation of accelerated vesting of stock optionsawards; and (4) reduction of other benefits paid to Executiveemployee benefits. In the event that acceleration of vesting of outstanding equity award compensation awards is to be reduced, such acceleration of vesting will shall be cancelled undertaken in the reverse order of the date of grant of the Executive’s outstanding equity awards. In no event All calculations and determinations made pursuant this Section 9(i) will the Company be made by an independent accounting or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional consulting firm engaged or independent tax counsel appointed by the Company (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Company and the Executive for general tax all purposes. For purposes as of making the calculations and determinations required by this Section 9(i), the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G of the day prior to the effective date Code and Section 4999 of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunderCode. The Company will shall bear all expenses costs the Tax Counsel may reasonably incur in connection with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executiveits services.
Appears in 8 contracts
Samples: Employment Agreement (Hayward Holdings, Inc.), Employment Agreement (Hayward Holdings, Inc.), Employment Agreement (Hayward Holdings, Inc.)
Section 280G. (a) If the aggregate of all amounts and benefits due to the Executive under this Agreement or any payment other plan, program, agreement or benefit Executive will or may receive from arrangement of the Company or otherwise (a “Payment”) any of its Affiliates, which, if received by the Executive in full, would (i) constitute a “parachute paymentpayments” within as such term is defined in and under Section 280G of the meaning Code (collectively, “Change of Control Benefits”), reduced by all Federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Section 4999 of the Code, is less than the amount the Executive would receive, after all such applicable taxes, if the Executive received aggregate Change of Control Benefits equal to an amount which is $1.00 less than three times the Executive’s “base amount,” as defined in and determined under Section 280G of the Code, and (ii) but for this sentence, then such Change of Control Benefits shall be subject reduced or eliminated to the excise tax imposed extent necessary so that the Change of Control Benefits received by Section 4999 of the Code (the “Excise Tax”), then such Payment Executive will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Paymentnot constitute parachute payments. If a reduction in the Payment Change of Control Benefits is to be made so that the Payment equals the Reduced Amountnecessary, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order unless the Executive elects in writing a different order: , subject to the Company’s consent (1) which consent shall not be unreasonably withheld): first, a reduction of cash payments; (2) cancellation of accelerated vesting of payments not attributable to equity awards other than stock optionswhich vest on an accelerated basis; (3) second, the cancellation of accelerated vesting of stock optionsawards; third, the reduction of employee benefits; and (4) fourth, a reduction of in any other benefits paid to Executive. In the event that “parachute payments.” If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awardsstock awards unless the Executive elects in writing a different order for cancellation.
(b) It is possible that after the determinations and selections made pursuant to Section 13.2(a) above the Executive will receive Change of Control Benefits that are, in the aggregate, either more or less than the amounts contemplated by Section 13.2(a) above (hereafter referred to as an “Excess Payment” or “Underpayment”, respectively). In no event will If there is an Excess Payment, the Executive shall promptly repay the Company or any stockholder an amount consistent with this Section 13.2. If there is an Underpayment, the Company shall pay the Executive an amount consistent with this Section 13.2.
(c) The determinations with respect to this Section 13.2 shall be liable to Executive for any amounts not paid as a result of made by an independent auditor (the operation of this Section“Auditor”) compensated by the Company. The professional Auditor shall be the Company’s regular independent auditor, unless the Executive objects to the use of that firm, in which event the Auditor shall be a nationally-recognized United States public accounting firm engaged chosen by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged and approved by the Company is serving as accountant Executive (which approval shall not be unreasonably withheld or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executivedelayed).
Appears in 8 contracts
Samples: Employment Agreement (Revlon Inc /De/), Employment Agreement (Revlon Inc /De/), Employment Agreement (Revlon Inc /De/)
Section 280G. If any payment or benefit Executive will or may receive from the Company or otherwise (a “Payment”) would (i) constitute In the event that the Grantee becomes entitled to payments or benefits under this Agreement, the Plan and/or any other payments or benefits by reason of a “change of control” as defined in Section 280G of the Code and regulations thereunder (collectively, the “Payments”), and any such Payment would constitute an “excess parachute payment” within the meaning of Section 280G 280G(b)(1) of the Code, and (ii) but for this sentence, or would otherwise be subject to the excise tax imposed by under Section 4999 of the Code Code, or any similar federal or state law (the an “Excise Tax”), then such Payment will as determined by an independent certified public accounting firm selected by the Company (the “Accounting Firm”), the amount of the Grantee’s Payments shall be equal limited to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment amount payable, if any, that would not result in no portion the imposition of the Payment (after reduction) being subject any Excise Tax to the Excise Tax or (2) Grantee, but only if, notwithstanding such limitation, the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal ratetotal Payments, net of all taxes imposed on the maximum reduction in federal income taxes which could Grantee with respect thereto, would be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment. greater if no Excise Tax were imposed.
(ii) If a reduction in the Payment Payments is to be made so that the Payment equals the Reduced Amountnecessary, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order: (1) first, a reduction of cash payments; (2) cancellation of accelerated vesting of payments not attributable to equity awards other than stock optionswhich vest on an accelerated basis; (3) second, the cancellation of accelerated vesting of stock optionsawards; third, the reduction of employee benefits; and fourth, a reduction in any other “parachute payments” (4) reduction as defined in Section 280G of other benefits paid to Executivethe Code). In the event that If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executivethe Grantee’s equity stock awards. In no event will , and the Company or any stockholder be liable to Executive for any amounts not paid as a result acceleration of the operation vesting of this Section. The professional firm engaged by full shares shall be cancelled before the Company for general tax purposes as acceleration of the day prior to the effective date vesting of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the options.
(iii) All determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If under this Section 12(d) will be made by the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such PaymentAccounting Firm. Any good faith determinations of determination by the tax firm made hereunder Accounting Firm will be final, binding and conclusive upon the Company and Executivethe Grantee. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 shall be borne by the Company.
Appears in 8 contracts
Samples: Restricted Stock Unit Grant Agreement (Momentive Performance Materials Inc.), Nonqualified Stock Option Grant Certificate (McGraw-Hill Global Education LLC), Nonqualified Stock Option Grant Certificate (McGraw-Hill Global Education LLC)
Section 280G. (a) If any payment or benefit Executive will or may receive from the Company payments and other benefits provided for in this Agreement or otherwise (a collectively, the “PaymentPayments”) would (i) would, either separately or in the aggregate, constitute a “parachute paymentpayments” within the meaning of Section 280G of the CodeCode and, and (ii) but for this sentenceSection 3.6, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then such Payment the Payments will be equal payable to the Reduced Amount (defined below). The “Reduced Amount” will be Executive either (l) the largest portion of the Payment that in full or in such lesser amounts as would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Paymentresult, whichever amount after taking into account all the applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rateexcise tax imposed by Section 4999, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, receipt on an after-tax basis, basis of the greatest amount of the PaymentPayments. If a reduction in the Payment Payments is required pursuant to this Section 3.6, Payments shall be made so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur reduced in the following order: (1i) reduction or elimination of cash paymentsseverance benefits that are subject to Section 409A of the Code; (2ii) reduction or elimination of cash severance benefits that are not subject to Section 409A of the Code; (iii) cancellation or reduction of accelerated vesting of equity awards other than that are not stock optionsoptions or stock appreciation rights; (3iv) cancellation or reduction of accelerated vesting of stock optionsoptions and stock appreciation rights; and (4v) reduction or elimination of other Payments. Any reduction of cash severance benefits paid to Executive. In or other cash Payments shall be made in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event that acceleration triggering such excise tax will be the first cash payment to be reduced. Any reduction of accelerated vesting of equity award compensation is to shall be reduced, such acceleration of vesting will be cancelled made in the reverse order of the date of grant so that the accelerated vesting of Executive’s the most recently granted equity awardsaward will be reduced first. In no event shall Executive have any discretion with respect to the ordering of payment or benefits reductions. Executive will be solely responsible for the Company or any stockholder be liable to Executive for any amounts not paid payment of all personal tax liability incurred as a result of the operation of payments and benefits received under this Section. The professional firm engaged Agreement, and Executive will not be reimbursed by the Company for general any such tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the liability.
(b) All calculations and determinations under this Section 3.6 shall be made by an independent accounting firm or independent tax firm so engaged counsel appointed by the Company is serving as accountant or auditor (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Company and Executive for all purposes. For purposes of making the acquirercalculations and determinations required by this Section 3.6, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company will appoint a nationally recognized tax firm and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 3.6. The Company shall bear all costs the determinations required Tax Counsel may reasonably incur in connection with its services hereunder. The Company will bear all expenses with respect have no liability to Executive for the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and ExecutiveTax Counsel.
Appears in 8 contracts
Samples: Severance Agreement (Cohu Inc), Severance Agreement (Cohu Inc), Severance Agreement (Cohu Inc)
Section 280G. If any payment (a) Notwithstanding anything contained in this Agreement to the contrary, in the event that the payments and benefits provided pursuant to this Agreement, together with all other payments and benefits received or benefit to be received by Executive will or may receive from the Company or otherwise (a “PaymentPayments”) would (i) ), constitute a “parachute paymentpayments” within the meaning of Code Section 280G of the CodeG, and (ii) and, but for this sentenceSection 4, would be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then such Payment will the Payments shall be equal made to the Reduced Amount (defined below). The “Reduced Amount” will be Executive either (li) the largest portion of the Payment that in full or (ii) as to such lesser amount as would result in no portion of the Payment (after reduction) Payments being subject to the Excise Tax or (2) the entire a “Reduced Payment”), whichever amount after of the foregoing amounts, taking into account all applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes)Tax, results in Executive’s receipt, receipt on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of the PaymentPayments may be subject to the Excise Tax. If For the avoidance of doubt, the Payments shall include acceleration of vesting of equity awards granted by TuSimple that vest based on service to TuSimple and that accelerate in connection with a reduction Change in the Payment is to be made so that the Payment equals the Reduced AmountControl of TuSimple, (x) the Payment will be paid but only to the extent permitted under the such acceleration of vesting is deemed a parachute payment with respect to a Change in Control of TuSimple.
(b) For purposes of determining whether to make a Reduced Amount alternativePayment, if applicable, TuSimple shall cause to be taken into account all federal, state and local income and employment taxes and excise taxes applicable to the Executive will (including the Excise Tax). If a Reduced Payment is made, TuSimple shall reduce or eliminate the Payments in the following order, unless (to the extent permitted by Section 409A of the Code) Executive elects to have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur applied in the following a different order: (1) cancellation of accelerated vesting of options with no intrinsic value, (2) reduction of cash payments; , (23) cancellation of accelerated vesting of equity awards other than stock options; , (34) cancellation of accelerated vesting of stock options; options with intrinsic value and (45) reduction of other benefits paid to the Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards. In no the event will that cash payments or other benefits are reduced, such reduction shall occur in reverse order beginning with payments or benefits which are to be paid farthest in time from the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control determination. For avoidance of doubt, an option will perform be considered to have no intrinsic value if the foregoing calculations. If exercise price of the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect shares subject to the option exceeds the fair market value of such shares.
(c) All determinations by such firm required to be made under this Section 4 (including whether any of the Payments are parachute payments and whether to make a Reduced Payment) will be made by a nationally recognized independent accounting firm selected by TuSimple. For purposes of making the calculations required by this section, the accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonably, good faith interpretations concerning the application of Code Sections 280G and 4999. TuSimple will bear the costs that the accounting firm may reasonably incur in connection with the calculations contemplated by this Section 4. The accounting firm’s determination will be binding on both Executive and TuSimple absent manifest error.
(d) As a result of uncertainty in the application of Sections 4999 and 280G of the Code at the time of the initial determination by the accounting firm hereunder, it is possible that payments will have been made by TuSimple which should not have been made (an “Overpayment”) or that additional payments which will not have been made by TuSimple could have been made (an “Underpayment”), consistent in each case with the calculation of whether and to what extent a Reduced Payment shall be made hereunder. If In either event, the tax accounting firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the event that the accounting firm determines that an Overpayment has occurred, the Executive shall promptly repay, or transfer, to TuSimple the amount of any such Overpayment; provided, however, that no Excise Tax amount shall be payable, or transferable, by the Executive to TuSimple if and to the extent that such payment or transfer would not reduce the amount that is payable subject to taxation under Section 4999 of the Code. In the event that the accounting firm determines that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by TuSimple to or for the benefit of the Executive, together with interest at the applicable federal rate provided in Section 7872(f)(2) of the Code.
(e) If this Section 4 is applicable with respect to an Executive’s receipt of a Reduced Payment, either before it shall supersede any contrary provision of any plan, arrangement or after agreement governing the application of Executive’s rights to the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and ExecutivePayments.
Appears in 5 contracts
Samples: Severance and Change in Control Agreement (TuSimple Holdings Inc.), Severance and Change in Control Agreement (TuSimple Holdings Inc.), Severance and Change in Control Agreement (TuSimple Holdings Inc.)
Section 280G. If any payment (a) Notwithstanding anything in this Agreement to the contrary, in the event that the Company’s independent public accountants (the “Accountants”) shall determine in good faith that receipt of all payments or benefit Executive will benefits made or may receive from provided by the Company or otherwise its affiliated companies in the nature of compensation to or for Employee’s benefit (each, a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code), whether payable or to be provided pursuant to this Agreement or otherwise, and (iiincluding, without limitation, the post-termination payments and benefits provided pursuant to Section 4(d) and the Restricted Stock Award provided pursuant to Section 2, would, but for this sentence, be subject Employee to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “Code”), then such Payment will the Company shall cause to be equal to determined by the Reduced Amount Accountants in good faith, before any Payments are made, which of the following two (defined below). The “Reduced Amount” will be either (l2) alternative forms of payment would result in Employee’s receipt, on an after-tax basis, of the largest greater aggregate amount of Payments, notwithstanding that all or some portion of the Payment that would result in no portion of the Payment (after reduction) being Payments may be subject to the Excise Tax Tax, and shall pay to Employee such greater amount: (1) payment in full of the entire amount of the Payments (a “Full Payment”), or (2) payment of only a part of the entire Payments so that Employee receives the largest amount of the Payments possible without the imposition of the Excise Tax (a “Reduced Payment”).
(b) For purposes of determining whether to make a Full Payment or a Reduced Payment, whichever amount after taking the Company shall cause to be taken into account by the Accountants all applicable federal, state and local income and employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). If the Accountants determine that aggregate Payments should be reduced to the Reduced Payment, results in Executive’s receipt, on an after-tax basis, the Company shall promptly give Employee notice to that effect and a copy of the greatest amount of the Paymentdetailed calculation thereof. If a reduction in the Reduced Payment is to be made so that the Payment equals the Reduced Amountmade, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will Employee shall have no rights to any additional payments and/or benefits constituting the Payment, and (y) any reduction of the Payments shall be made in payments and/or benefits accordance with Section 5(d) below.
(c) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that Payments will have been made by the Company to or for the benefit of Employee which should not have been so made (“Overpayment”), or that additional amounts which will have not been paid or distributed by the Company to or for the benefit of Employee could have been so paid or distributed (“Underpayment”), in each case, consistent with the calculation of the Full Payment or the Reduced Payment hereunder, as the case may be. In the event that the Accountants, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or Employee which the Accountants believe has a high probability of success, determine that an Overpayment has been made, Employee shall pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by Employee to the Company if and to the extent such payment would not either reduce the amount on which Employee is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accountants determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.
(d) Any reduction of Payments to the Reduced Payment shall occur in the following order: (1i) reduction of any cash paymentsseverance payable by reference to the Employee's Base Salary or Performance Bonus; (2ii) cancellation of accelerated vesting of equity awards any other than stock optionscash amount payable to the Employee; (3iii) cancellation any benefit valued as a "parachute payment" (within the meaning of accelerated vesting Section 280G of stock optionsthe Code); and (4iv) reduction acceleration of other benefits paid vesting of any Restricted Stock Award.
(e) Subject to Executivethe last sentence of this subsection (e), all determinations made by the Accountants under this Section 5 shall be conclusive and binding upon the Company and Employee for all purposes. All fees and expenses of the Accountants shall be borne solely by the Company. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Employee will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make determinations under this Section 5. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in Employee or the reverse order Company disagrees with the determination of the date of grant of Executive’s equity awards. In no event will Accountants under this Section 5, either the Company or any stockholder Employee can have such determination reviewed through the mechanism set forth in Section 8(e). If such mechanism is used, review shall be liable to Executive for any amounts not paid as a result de novo and no presumption of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior correctness shall attach to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and ExecutiveAccountants’ determination.
Appears in 3 contracts
Samples: Employment Agreement (Kennedy-Wilson Holdings, Inc.), Employment Agreement (Kennedy-Wilson Holdings, Inc.), Employment Agreement (Kennedy-Wilson Holdings, Inc.)
Section 280G. If In the event that any payment payments or benefit benefits otherwise payable to Executive will or may receive from the Company or otherwise (a “Payment”) would (i1) constitute a “parachute paymentpayments” within the meaning of Section 280G of the Code, and (ii2) but for this sentenceSection 10, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then such Payment will be equal to the Reduced Amount (defined below). The “Reduced Amount” payments and benefits will be either (lx) the largest portion of the Payment delivered in full, or (y) delivered as to such lesser extent that would result in no portion of the Payment (after reduction) such payments and benefits being subject to excise tax under Section 4999 of the Excise Tax or (2) the entire PaymentCode, whichever amount after of the foregoing amounts, taking into account all the applicable federal, state and local income and employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate, net excise tax imposed by Section 4999 of the maximum reduction in federal income taxes which could be obtained from a deduction of such Code (and any equivalent state and or local excise taxes), results in Executive’s receipt, the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such payments and benefits may be taxable under Section 4999 of the PaymentCode. If a reduction Unless the Company and Executive otherwise agree in the Payment is to writing, any determination required under this Section 10 will be made so that in writing by Golden Parachute Tax Solutions, LLC or such other nationally-recognized accounting firm selected by Executive in his discretion (the Payment equals the Reduced Amount“Accountants”), (x) the Payment whose determination will be paid only conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 10, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive agree to furnish to the extent permitted Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this provision. The Company will bear all costs the Reduced Amount alternative, and the Executive will have no rights to Accountants may reasonably incur in connection with any additional payments and/or benefits constituting the Payment, and (y) calculations contemplated by this provision. Any reduction in payments and/or benefits required by this provision will occur in the following order: (1) reduction of cash payments; (2) cancellation reduction of accelerated vesting acceleration of equity awards other than stock options; (3) cancellation of accelerated vesting of stock optionsawards; and (43) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of equity award compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s for equity awards. In no event will If two or more equity awards are granted on the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirersame date, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder each award will be final, binding and conclusive upon the Company and Executivereduced on a pro-rata basis.
Appears in 3 contracts
Samples: Employment Agreement (Urban Edge Properties), Employment Agreement (Urban Edge Properties), Employment Agreement (Urban Edge Properties)
Section 280G. If any payment (a) Notwithstanding anything contained in this Agreement to the contrary, in the event that the payments and benefits provided pursuant to this Agreement, together with all other payments and benefits received or benefit to be received by Executive will or may receive from the Company or otherwise (a “PaymentPayments”) would (i) ), constitute a “parachute paymentpayments” within the meaning of Code Section 280G of the CodeG, and (ii) and, but for this sentenceSection 4, would be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then such Payment will the Payments shall be equal made to the Reduced Amount (defined below). The “Reduced Amount” will be Executive either (li) the largest portion of the Payment that in full or (ii) as to such lesser amount as would result in no portion of the Payment (after reduction) Payments being subject to the Excise Tax or (2) the entire a “Reduced Payment”), whichever amount after of the foregoing amounts, taking into account all applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes)Tax, results in Executive’s receipt, receipt on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of the PaymentPayments may be subject to the Excise Tax. If For the avoidance of doubt, the Payments shall include acceleration of vesting of equity awards granted by the Company that vest based on service to the Company and that accelerate in connection with a reduction Change in Control of the Payment is to be made so that the Payment equals the Reduced AmountCompany, (x) the Payment will be paid but only to the extent permitted under such acceleration of vesting is deemed a parachute payment with respect to a Change in Control of the Company.
(b) For purposes of determining whether to make a Reduced Amount alternativePayment, if applicable, the Company shall cause to be taken into account all federal, state and local income and employment taxes and excise taxes applicable to the Executive will (including the Excise Tax). If a Reduced Payment is made, the Company shall reduce or eliminate the Payments in the following order, unless (to the extent permitted by Section 409A of the Code) Executive elects to have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur applied in the following a different order: (1) cancellation of accelerated vesting of options with no intrinsic value, (2) reduction of cash payments; , (23) cancellation of accelerated vesting of equity awards other than stock options; , (34) cancellation of accelerated vesting of stock options; options with intrinsic value and (45) reduction of other benefits paid to the Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards. In no the event will that cash payments or other benefits are reduced, such reduction shall occur in reverse order beginning with payments or benefits which are to be paid farthest in time from the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control determination. For avoidance of doubt, an option will perform be considered to have no intrinsic value if the foregoing calculations. If exercise price of the tax firm so engaged shares subject to the option exceeds the fair market value of such shares.
(c) All determinations required to be made under this Section 4 (including whether any of the Payments are parachute payments and whether to make a Reduced Payment) will be made by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax independent accounting firm to selected by the Company. For purposes of making the calculations required by this section, the accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonably, good faith interpretations concerning the determinations required hereunderapplication of Code Sections 280G and 4999. The Company will bear all expenses the costs that the accounting firm may reasonably incur in connection with respect the calculations contemplated by this Section 4. The accounting firm’s determination will be binding on both Executive and the Company absent manifest error.
(d) As a result of uncertainty in the application of Sections 4999 and 280G of the Code at the time of the initial determination by the accounting firm hereunder, it is possible that payments will have been made by the Company which should not have been made (an “Overpayment”) or that additional payments which will not have been made by the Company could have been made (an “Underpayment”), consistent in each case with the calculation of whether and to the determinations by such firm required to what extent a Reduced Payment shall be made hereunder. If In either event, the tax accounting firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the event that the accounting firm determines that an Overpayment has occurred, the Executive shall promptly repay, or transfer, to the Company the amount of any such Overpayment; provided, however, that no Excise Tax amount shall be payable, or transferable, by the Executive to the Company if and to the extent that such payment or transfer would not reduce the amount that is payable subject to taxation under Section 4999 of the Code. In the event that the accounting firm determines that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by the Company to or for the benefit of the Executive, together with interest at the applicable federal rate provided in Section 7872(f)(2) of the Code.
(e) If this Section 4 is applicable with respect to an Executive’s receipt of a Reduced Payment, either before it shall supersede any contrary provision of any plan, arrangement or after agreement governing the application of Executive’s rights to the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and ExecutivePayments.
Appears in 3 contracts
Samples: Severance and Change in Control Agreement, Severance and Change in Control Agreement (Arcus Biosciences, Inc.), Severance and Change in Control Agreement (Arcus Biosciences, Inc.)
Section 280G. (a) If the aggregate of all amounts and benefits due to the Executive under this Agreement or any payment other plan, program, agreement or benefit Executive will or may receive from arrangement of the Company or otherwise (a “Payment”) any of its Affiliates, which, if received by the Executive in full, would (i) constitute a “parachute paymentpayments” within as such term is defined in and under Section 280G of the meaning Code (collectively, “Change of Control Benefits”), reduced by all Federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Section 4999 of the Code, is less than the amount the Executive would receive, after all such applicable taxes, if the Executive received aggregate Change of Control Benefits equal to an amount which is $1.00 less than three times the Executive’s “base amount”, as defined in and determined under Section 280G of the Code, and (ii) but for this sentence, then such Change of Control Benefits shall be subject reduced or eliminated to the excise tax imposed extent necessary so that the Change of Control Benefits received by Section 4999 of the Code (the “Excise Tax”), then such Payment Executive will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Paymentnot constitute parachute payments. If a reduction in the Payment Change of Control Benefits is to be made so that the Payment equals the Reduced Amountnecessary, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order unless the Executive elects in writing a different order: , subject to the Company’s consent (1) which consent shall not be unreasonably withheld): first, a reduction of cash payments; (2) cancellation of accelerated vesting of payments not attributable to equity awards other than stock optionswhich vest on an accelerated basis; (3) second, the cancellation of accelerated vesting of stock optionsawards; third, the reduction of employee benefits; and (4) fourth, a reduction of in any other benefits paid to Executive“parachute payments”. In the event that If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awardsstock awards unless the Executive elects in writing a different order for cancellation.
(b) It is possible that after the determinations and selections made pursuant to Section 13.2(a) above the Executive will receive Change of Control Benefits that are, in the aggregate, either more or less than the amounts contemplated by Section 13.2(a) above (hereafter referred to as an “Excess Payment” or “Underpayment”, respectively). In no event will If there is an Excess Payment, the Executive shall promptly repay the Company or any stockholder an amount consistent with this Section 13.2. If there is an Underpayment, the Company shall pay the Executive an amount consistent with this Section 13.2.
(c) The determinations with respect to this Section 13.2 shall be liable to Executive for any amounts not paid as a result of made by an independent auditor (the operation of this Section“Auditor”) compensated by the Company. The professional Auditor shall be the Company’s regular independent auditor, unless the Executive objects to the use of that firm, in which event the Auditor shall be a nationally-recognized United States public accounting firm engaged chosen by the Company for general tax and approved by the Executive (which approval shall not be unreasonably withheld or delayed). For purposes of this Agreement, the term “Code” shall mean the Internal Revenue Code of 1986, as amended, including all final regulations promulgated thereunder and any reference to a particular section of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant Code shall include any provision that modifies, replaces or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by supersedes such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executivesection.
Appears in 3 contracts
Samples: Employment Agreement (Revlon Inc /De/), Employment Agreement (Revlon Inc /De/), Employment Agreement (Revlon Inc /De/)
Section 280G. (a) If the aggregate of all amounts and benefits due to the Executive under this Agreement or any payment other plan, program, agreement or benefit Executive will or may receive from arrangement of the Company or otherwise (a “Payment”) any of its Affiliates, which, if received by the Executive in full, would (i) constitute a “parachute paymentpayments,” within as such term is defined in and under Section 280G of the meaning Code (collectively, “Change of Control Benefits”), reduced by all Federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Section 4999 of the Code, is less than the amount the Executive would receive, after all such applicable taxes, if the Executive received aggregate Change of Control Benefits equal to an amount which is $1.00 less than three times the Executive's “base amount,” as defined in and determined under Section 280G of the Code, and (ii) but for this sentence, then such Change of Control Benefits shall be subject reduced or eliminated to the excise tax imposed extent necessary so that the Change of Control Benefits received by Section 4999 of the Code (the “Excise Tax”), then such Payment Executive will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Paymentnot constitute parachute payments. If a reduction in the Payment Change of Control Benefits is to be made so that the Payment equals the Reduced Amountnecessary, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order unless the Executive elects in writing a different order: , subject to the Company’s consent (1) which consent shall not be unreasonably withheld): first, a reduction of cash payments; (2) cancellation of accelerated vesting of payments not attributable to equity awards other than stock optionswhich vest on an accelerated basis; (3) second, the cancellation of accelerated vesting of stock optionsawards; third, the reduction of employee benefits; and (4) fourth, a reduction of in any other benefits paid to Executive. In the event that “parachute payments.” If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards's stock awards unless the Executive elects in writing a different order for cancellation.
(b) It is possible that after the determinations and selections made pursuant to Section 13.2(a) above the Executive will receive Change of Control Benefits that are, in the aggregate, either more or less than the amounts contemplated by Section 13.2(a) above (hereafter referred to as an “Excess Payment” or “Underpayment,” respectively). In no event will If there is an Excess Payment, the Executive shall promptly repay the Company or any stockholder an amount consistent with this Section 13.2. If there is an Underpayment, the Company shall pay the Executive an amount consistent with this Section 13.2.
(c) The determinations with respect to this Section 13.2 shall be liable to Executive for any amounts not paid as a result of made by an independent auditor (the operation of this Section“Auditor”) compensated by the Company. The professional Auditor shall be the Company’s regular independent auditor, unless the Executive objects to the use of that firm, in which event the Auditor shall be a nationally-recognized United States public accounting firm engaged chosen by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged and approved by the Company is serving as accountant Executive (which approval shall not be unreasonably withheld or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executivedelayed).
Appears in 2 contracts
Samples: Employment Agreement (Revlon Inc /De/), Employment Agreement (Revlon Inc /De/)
Section 280G. If any payment or benefit Executive will or may receive from the Company or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment. If a reduction in the Payment is to be made so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executive.day
Appears in 2 contracts
Samples: Executive Employment Agreement (Tocagen Inc), Executive Employment Agreement (Tocagen Inc)
Section 280G. If any payment or benefit Executive will or may receive from the Company or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment. If a reduction in the Payment is to be made so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executive.required
Appears in 2 contracts
Samples: Employment Agreement (Reneo Pharmaceuticals, Inc.), Executive Employment Agreement (Tocagen Inc)
Section 280G. If any payment or benefit Executive will or may receive from the Company or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l1) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment. If a reduction in the Payment is to be made so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executive.
Appears in 2 contracts
Samples: Employment Agreement (Reneo Pharmaceuticals, Inc.), Employment Agreement (Reneo Pharmaceuticals, Inc.)
Section 280G. If Executive is a “disqualified individual,” as defined in Section 280G(c) of the Code, then, notwithstanding any other provision of this Agreement or of any other agreement, contract, or understanding entered into between Executive and the Company or any affiliate, except an agreement, contract, or understanding that expressly addresses Section 280G or Section 4999 of the Code (an “Other Agreement”), and notwithstanding any formal or informal agreement, plan or other arrangement for the direct or indirect provision of compensation to Executive (including groups or classes of beneficiaries of which Executive is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for Executive (a “Benefit Arrangement”), any right of Executive to any vesting, payment or benefit Executive under this Agreement will be reduced or may receive from the Company or otherwise (a “Payment”) would eliminated:
(i) constitute to the extent that such right to exercise, vesting, payment, or benefit, taking into account all other rights, payments, or benefits to or for Executive under this Agreement, all Other Agreements, and all Benefit Arrangements, would cause any exercise, vesting, payment, or benefit to Executive under this Agreement to be considered a “parachute payment” within the meaning of Section 280G 280G(b)(2) of the Code, Code as then in effect (a “Parachute Payment”); and (ii) but for this sentenceif, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment. If a reduction in the Payment is to be made so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of receiving such Parachute Payment, the operation of this Section. The professional firm engaged aggregate after-tax amounts received by Executive from the Company for general under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax purposes as of the day prior amount that could be received by Executive without causing any such payment or benefit to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint be considered a nationally recognized tax firm to make the determinations required hereunderParachute Payment. The Company will bear all expenses with respect accomplish any reduction by first reducing or eliminating to the determinations by such firm required limited extent necessary any cash payments (with the payments to be made hereunder. If at the tax firm determines that no Excise Tax is payable with respect latest date in the future being reduced first), then by reducing or eliminating to a Paymentthe limited extent necessary any accelerated vesting of performance-based equity awards, either before then by reducing or after eliminating to the application limited extent necessary any accelerated vesting of options to purchase Company common stock or stock appreciation rights, then by reducing or eliminating to the Reduced Amountlimited extent necessary any accelerated vesting of shares of restricted Company common stock, it will furnish restricted stock units or deferred stock units, then by reducing or eliminating to the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executivelimited extent necessary any other remaining Parachute Payments.
Appears in 2 contracts
Samples: Employment Agreement (Advisory Board Co), Employment Agreement (Advisory Board Co)
Section 280G. If If, due to the payments and benefits provided by Section 8 and any payment other payments and benefits to which Executive is entitled pursuant to this Agreement or benefit otherwise, Executive will or may receive from the Company or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the any excise tax imposed by pursuant to Section 4999 of the United States Internal Revenue Code of 1986, as amended (the “Code”) due to characterization of any such payments or benefits as excess parachute payments pursuant to Section 280G(b)(1) of the Code (the “Excise Tax”), then such Payment the amounts payable under Section 8 will be equal reduced (to the Reduced Amount (defined below). The least extent possible) in order to avoid any “Reduced Amountexcess parachute payment” will be either (lunder Section 280G(b)(1) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the PaymentCode. If a Any reduction in the Payment is to payments and benefits required by this Section 8.3 will be made so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur in the following order: (1i) reduction of cash payments; (2ii) cancellation reduction of accelerated vesting of equity awards other than stock options; (3iii) cancellation reduction of accelerated vesting of stock options; and (4iv) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of equity award compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event If two or more equity awards are granted on the same date, each award will the Company or any stockholder be liable to Executive for any amounts not paid as reduced on a result of the operation of this Sectionpro-rata basis. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the All determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunderunder this Section 8.3, including whether any reduction in the payments and benefits is required, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made in good faith by an accounting firm selected by the Company in accordance with applicable law (the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive. All fees and expenses of the Accounting Firm and the tax counsel shall be borne solely by the Company. If the tax firm Accounting Firm determines that no Excise Tax is payable with respect to a Paymentby Executive, either before or after the application of the Reduced Amount, it will furnish the Company and shall request that the Accounting Firm furnish Executive with documentation an opinion that no he has substantial authority not to report any Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the on his federal, state, local income or other tax firm made hereunder will be final, binding and conclusive upon the Company and Executivereturn.
Appears in 1 contract
Section 280G. If In the event that the payments and benefits provided under this Agreement and benefits provided to, or for the benefit of, the Executive under any payment other plan or benefit Executive will agreement (such payments or may receive from benefits are collectively referred to as the Company or otherwise (a “PaymentBenefits”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”) imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), in connection with any transaction, then such Payment will the Company shall cause to be equal determined, before any amounts of the Benefits are paid to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) Executive, which of the largest following two alternative forms of payment would result in the Executive’s receipt, on an after-tax basis, of the greater amount of the Benefits notwithstanding that all or some portion of the Payment that would result in no portion of the Payment (after reduction) being Benefits may be subject to the Excise Tax Tax: (a) payment in full of the entire amount of the Benefits (a “Full Payment”), or (2b) payment of only a part of the entire Benefits so that the Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”), and the Executive shall be entitled to payment of whichever amount shall result in a greater after-tax amount for the Executive. For purposes of determining whether to make a Full Payment or a Reduced Payment, whichever amount after taking the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment. If a reduction in the Reduced Payment is to be made so that made, the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order: (1) first, reduction of cash payments; , in reverse order of scheduled payment date (or if necessary, to zero), (2) cancellation then, reduction of accelerated vesting of non-cash and non-equity awards other than stock options; benefits provided to the Executive, on a pro rata basis (or if necessary, to zero) and (3) then, cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of the Executive’s equity awards. In no event will A determination as to whether any Excise Tax would be imposed on the Benefits and, if so, whether a Full Payment or a Reduced Payment would result in a greater after-tax amount for the Executive, shall be made by the Company’s independent public accountants or another certified public accounting firm or executive compensation consulting firm of national reputation designated by the Company (the “Firm”) at the Company’s expense. The Firm shall provide its determination, together with detailed supporting calculations and documentation to the Company and the Executive within ten (10) business days of the date of termination of the Executive’s employment, if applicable, or such other time as reasonably requested by the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executive.
Appears in 1 contract
Samples: Employment Agreement (Bowlero Corp.)
Section 280G. If any payment Notwithstanding anything contained in this Agreement to the contrary, in the event that the payments and benefits provided pursuant to this Agreement, together with all other payments and benefits received or benefit to be received by Executive will or may receive from the Company or otherwise (a “PaymentPayments”) would (i) ), constitute a “parachute paymentpayments” within the meaning of Code Section 280G of the CodeG, and (ii) and, but for this sentenceSection 3, would be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then such Payment will the Payments shall be equal made to the Reduced Amount (defined below). The “Reduced Amount” will be Executive either (li) the largest portion of the Payment that in full or (ii) as to such lesser amount as would result in no portion of the Payment (after reduction) Payments being subject to the Excise Tax or (2) the entire a “Reduced Payment”), whichever amount after of the foregoing amounts, taking into account all applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes)Tax, results in Executive’s receipt, receipt on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of the PaymentPayments may be subject to the Excise Tax. If a reduction in the Reduced Payment is to be made so that the Payment equals the Reduced Amountunder this section, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits of Payments will occur in the following order: (1) reduction of cash payments; (2) , then cancellation of equity-based payments and accelerated vesting of equity awards, and then reduction of employee benefits. If accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awardsgrant. In no the event will that cash payments or other benefits are reduced, such reduction shall occur in reverse order beginning with the Company or payments and benefits which are to be paid furthest away in time. All determinations required to be made under this Section 3 (including whether any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional Payments are parachute payments and whether to make a Reduced Payment) will be made by an independent accounting firm engaged selected by the Company for general tax Company. For purposes as of making the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged calculations required by the Company is serving as accountant or auditor for the acquirerthis section, the Company will appoint a nationally recognized tax accounting firm to may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonably, good faith interpretations concerning the determinations required hereunderapplication of Code Sections 280G and 4999. The Company will bear all expenses the costs that the accounting firm may reasonably incur in connection with respect to the determinations calculations contemplated by such firm required to this Section 3. The accounting firm’s determination will be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish binding on both Executive and the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Paymentabsent manifest error. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executive4.
Appears in 1 contract
Samples: Executive Severance and Change in Control Agreement (Tarsus Pharmaceuticals, Inc.)
Section 280G. If If, due to the payments and benefits provided by Section 8 and any payment other payments and benefits to which Executive is entitled pursuant to this Agreement or benefit otherwise, Executive will or may receive from the Company or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the any excise tax imposed by pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) due to characterization of any such payments or benefits as excess parachute payments pursuant to Section 280G(b)(1) of the Code (the “Excise Tax”), then such Payment the amounts payable under Section 8 will be equal reduced (to the Reduced Amount (defined below). The least extent possible) in order to avoid any “Reduced Amountexcess parachute payment” will be either (lunder Section 280G(b)(1) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the PaymentCode. If a Any reduction in the Payment is to payments and benefits required by this Section 8.3 will be made so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur in the following order: (1i) reduction of cash payments; (2ii) cancellation reduction of accelerated vesting of equity awards other than stock options; (3iii) cancellation reduction of accelerated vesting of stock options; and (4iv) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of equity award compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event If two or more equity awards are granted on the same date, each award will the Company or any stockholder be liable to Executive for any amounts not paid as reduced on a result of the operation of this Sectionpro-rata basis. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the All determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunderunder this Section 8.3, including whether any reduction in the payments and benefits is required, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made in good faith by an accounting firm selected by the Company in accordance with applicable law (the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive. All fees and expenses of the Accounting Firm and the tax counsel shall be borne solely by the Company. If the tax firm Accounting Firm determines that no Excise Tax is payable with respect to a Paymentby Executive, either before or after the application of the Reduced Amount, it will furnish the Company and shall request that the Accounting Firm furnish Executive with documentation an opinion that no he has substantial authority not to report any Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the on his federal, state, local income or other tax firm made hereunder will be final, binding and conclusive upon the Company and Executivereturn.
Appears in 1 contract
Section 280G. If any payment or benefit Executive will or may receive from the Company or otherwise (a “Payment”) would (i) constitute In the event that the Grantee becomes entitled to payments or benefits under this Agreement, the Plan and/or any other payments or benefits by reason of a “change of control” as defined in Section 280G of the Code and regulations thereunder (collectively, the “Payments”), and any such Payment would constitute an “excess parachute payment” within the meaning of Section 280G 280G(b)(1) of the Code, and (ii) but for this sentence, or would otherwise be subject to the excise tax imposed by under Section 4999 of the Code Code, or any similar federal or state law (the an “Excise Tax”), then such Payment will as determined by an independent certified public accounting firm selected by the Company (the “Accounting Firm”), the amount of the Grantee’s Payments shall be equal limited to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment amount payable, if any, that would not result in no portion the imposition of the Payment (after reduction) being subject any Excise Tax to the Excise Tax or (2) Grantee, but only if, notwithstanding such limitation, the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal ratetotal Payments, net of all taxes imposed on the maximum reduction in federal income taxes which could Grantee with respect thereto, would be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment. greater if no Excise Tax were imposed.
(ii) If a reduction in the Payment Payments is to be made so that the Payment equals the Reduced Amountnecessary, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order: (1) first, a reduction of cash payments; (2) cancellation of accelerated vesting of payments not attributable to equity awards other than stock optionswhich vest on an accelerated basis; (3) second, the cancellation of accelerated vesting of stock optionsawards; third, the reduction of benefits; and fourth, a reduction in any other “parachute payments” (4) reduction as defined in Section 280G of other benefits paid to Executivethe Code). In the event that If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executivethe Grantee’s equity stock awards. In no event will , and the Company or any stockholder be liable to Executive for any amounts not paid as a result acceleration of the operation vesting of this Section. The professional firm engaged by full shares shall be cancelled before the Company for general tax purposes as acceleration of the day prior to the effective date vesting of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the options.
(iii) All determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If under this Section 12(d) will be made by the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such PaymentAccounting Firm. Any good faith determinations of determination by the tax firm made hereunder Accounting Firm will be final, binding and conclusive upon the Company and Executivethe Grantee. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 shall be borne by the Company.
Appears in 1 contract
Samples: Director Restricted Stock Unit Grant Certificate (Momentive Performance Materials Inc.)
Section 280G. 13.2.1 If the aggregate of all amounts and benefits due to the Executive under this Agreement or any payment other plan, program, agreement or benefit Executive will or may receive from arrangement of the Company or otherwise (a “Payment”) any of its Affiliates, which, if received by the Executive in full, would (i) constitute a “parachute paymentpayments,” within as such term is defined in and under Section 280G of the meaning Code (collectively, “Change of Control Benefits”), reduced by all Federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Section 4999 of the Code, is less than the amount the Executive would receive, after all such applicable taxes, if the Executive received aggregate Change of Control Benefits equal to an amount which is $1.00 less than three times the Executive's “base amount,” as defined in and determined under Section 280G of the Code, and (ii) but for this sentence, then such Change of Control Benefits shall be subject reduced or eliminated to the excise tax imposed extent necessary so that the Change of Control Benefits received by Section 4999 of the Code (the “Excise Tax”), then such Payment Executive will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Paymentnot constitute parachute payments. If a reduction in the Payment Change of Control Benefits is to be made so that the Payment equals the Reduced Amountnecessary, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order unless the Executive elects in writing a different order: , subject to the Company’s consent (1) which consent shall not be unreasonably withheld): first, a reduction of cash payments; (2) cancellation of accelerated vesting of payments not attributable to equity awards other than stock optionswhich vest on an accelerated basis; (3) second, the cancellation of accelerated vesting of stock optionsawards; third, the reduction of employee benefits; and (4) fourth, a reduction of in any other benefits paid to Executive. In the event that “parachute payments.” If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards's stock awards unless the Executive elects in writing a different order for cancellation.
13.2.2 It is possible that after the determinations and selections made pursuant to Section 13.2.1 above the Executive will receive Change of Control Benefits that are, in the aggregate, either more or less than the amounts contemplated by Section 13.2.1 above (hereafter referred to as an “Excess Payment” or “Underpayment,” respectively). In no event will If there is an Excess Payment, the Executive shall promptly repay the Company or any stockholder an amount consistent with this Section 13.2. If there is an Underpayment, the Company shall pay the Executive an amount consistent with this Section 13.2. 13.2.3 The determinations with respect to this Section 13.2 shall be liable to Executive for any amounts not paid as a result of made by an independent auditor (the operation of this Section“Auditor”) compensated by the Company. The professional Auditor shall be the Company’s regular independent auditor, unless the Executive objects to the use of that firm, in which event the Auditor shall be a nationally-recognized United States public accounting firm engaged chosen by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged and approved by the Company is serving as accountant Executive (which approval shall not be unreasonably withheld or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executivedelayed).
Appears in 1 contract
Samples: Employment Agreement
Section 280G. 13.2.1 If the aggregate of all amounts and benefits due to the Executive under this Agreement or any payment other plan, program, agreement or benefit Executive will or may receive from arrangement of the Company or otherwise (a “Payment”) any of its Affiliates, which, if received by the Executive in full, would (i) constitute a “parachute paymentpayments,” within as such term is defined in and under Section 280G of the meaning Code (collectively, “Change of Control Benefits”), reduced by all Federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Section 4999 of the Code, is less than the amount the Executive would receive, after all such applicable taxes, if the Executive received aggregate Change of Control Benefits equal to an amount which is $1.00 less than three times the Executive's “base amount,” as defined in and determined under Section 280G of the Code, and (ii) but for this sentence, then such Change of Control Benefits shall be subject reduced or eliminated to the excise tax imposed extent necessary so that the Change of Control Benefits received by Section 4999 of the Code (the “Excise Tax”), then such Payment Executive will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Paymentnot constitute parachute payments. If a reduction in the Payment Change of Control Benefits is to be made so that the Payment equals the Reduced Amountnecessary, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order unless the Executive elects in writing a different order: , subject to the Company’s consent (1) which consent shall not be unreasonably withheld): first, a reduction of cash payments; (2) cancellation of accelerated vesting of payments not attributable to equity awards other than stock optionswhich vest on an accelerated basis; (3) second, the cancellation of accelerated vesting of stock optionsawards; third, the reduction of employee benefits; and (4) fourth, a reduction of in any other benefits paid to Executive. In the event that “parachute payments.” If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards's stock awards unless the Executive elects in writing a different order for cancellation.
13.2.2 It is possible that after the determinations and selections made pursuant to Section 13.2.1 above the Executive will receive Change of Control Benefits that are, in the aggregate, either more or less than the amounts contemplated by Section 13.2.1 above (hereafter referred to as an “Excess Payment” or “Underpayment,” respectively). In no event will If there is an Excess Payment, the Executive shall promptly repay the Company or any stockholder an amount consistent with this Section 13.2. If there is an Underpayment, the Company shall pay the Executive an amount consistent with this Section 13.2.
13.2.3 The determinations with respect to this Section 13.2 shall be liable to Executive for any amounts not paid as a result of made by an independent auditor (the operation of this Section“Auditor”) compensated by the Company. The professional Auditor shall be the Company’s regular independent auditor, unless the Executive objects to the use of that firm, in which event the Auditor shall be a nationally-recognized United States public accounting firm engaged chosen by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged and approved by the Company is serving as accountant Executive (which approval shall not be unreasonably withheld or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executivedelayed).
Appears in 1 contract
Section 280G. If any payment or benefit Executive will or may receive from the Company or otherwise (a “"Payment”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then such Payment will be equal to the Reduced Amount (defined below). The “"Reduced Amount” ' will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s 's receipt, on an after-tax basis, of the greatest amount of the Payment. If a reduction in the Payment is to be made so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s 's equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executive.
Appears in 1 contract
Section 280G. If (a) Notwithstanding anything in this Agreement to the contrary, if any payment or benefit distribution Executive will or may would receive from the Company pursuant to this Agreement or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will the Company shall cause to be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion determined, before any amounts of the Payment that are paid to Executive, which of the following alternative forms of payment would result maximize Executive’s after-tax proceeds: (A) payment in no portion full of the entire amount of the Payment (after reductiona “Full Payment”), or (B) payment of only a part of the Payment so that Executive receives that largest Payment possible without being subject to the Excise Tax or (2) the entire a “Reduced Payment”), whichever amount after of the foregoing amounts, taking into account all the applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest greater amount of the Payment. , notwithstanding that all or some portion the Payment may be subject to the Excise Tax.
(b) If a reduction in the Reduced Payment is made pursuant to be made so that the Payment equals the Reduced Amountthis Section 27, (xi) the Payment will shall be paid only to the extent permitted under the Reduced Amount Payment alternative, and the Executive will shall have no rights to any additional payments and/or benefits constituting the Payment, and (yii) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid payable to Executive. In the event that acceleration of vesting of compensation from Executive’s equity award compensation awards is to be reduced, such acceleration of vesting will shall be cancelled canceled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. grant.
(c) The professional independent registered public accounting firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculationsChange of Control shall make all determinations required to be made under this Section 27. If the tax independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirerindividual, group or entity effecting the Change of Control, the Company will shall appoint a nationally recognized tax independent registered public accounting firm to make the determinations required hereunder. The Company will shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder.
(d) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company. If the tax independent registered public accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will shall furnish the Company and Executive with documentation an opinion reasonably acceptable to Executive that no Excise Tax is reasonably likely to will be imposed with respect to such Payment. Any good faith determinations of the tax accounting firm made hereunder will shall be final, binding and conclusive upon the Company and Executive.”
Appears in 1 contract
Samples: Executive Employment Agreement (Castle Biosciences Inc)
Section 280G. If any payment Notwithstanding anything contained in this Agreement to the contrary, in the event that the payments and benefits provided pursuant to this Agreement, together with all other payments and benefits received or benefit to be received by Executive will or may receive from the Company or otherwise (a “PaymentPayments”) would (i) ), constitute a “parachute paymentpayments” within the meaning of Code Section 280G of the CodeG, and (ii) and, but for this sentenceSection 4, would be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then such Payment will the Payments shall be equal made to the Reduced Amount (defined below). The “Reduced Amount” will be Executive either (li) the largest portion of the Payment that in full or (ii) as to such lesser amount as would result in no portion of the Payment (after reduction) Payments being subject to the Excise Tax or (2) the entire a “Reduced Payment”), whichever amount after of the foregoing amounts, taking into account all applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes)Tax, results in Executive’s receipt, receipt on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of the PaymentPayments may be subject to the Excise Tax. If a reduction in the Reduced Payment is to be made so that the Payment equals the Reduced Amountunder this section, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits of Payments will occur in the following order: (1) reduction of cash payments; (2) , then cancellation of equity-based payments and accelerated vesting of equity awards, and then reduction of employee benefits. If accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled canceled in the reverse order of the date of grant of Executive’s equity awardsgrant. In no the event will that cash payments or other benefits are reduced, such reduction shall occur in reverse order beginning with the Company or payments and benefits which are to be paid furthest away in time. All determinations required to be made under this Section 4 (including whether any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional Payments are parachute payments and whether to make a Reduced Payment) will be made by an independent accounting firm engaged selected by the Company for general tax Company. For purposes as of making the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged calculations required by the Company is serving as accountant or auditor for the acquirerthis section, the Company will appoint a nationally recognized tax accounting firm to may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonably, good faith interpretations concerning the determinations required hereunderapplication of Code Sections 280G and 4999. The Company will bear all expenses the costs that the accounting firm may reasonably incur in connection with respect to the determinations calculations contemplated by such firm required to this Section 4. The accounting firm’s determination will be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish binding on both Executive and the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executiveabsent manifest error.
Appears in 1 contract
Section 280G. If any payment or benefit Executive will received or may receive from the Company to be received by you (including any payment or otherwise (a “Payment”benefit received pursuant to this Agreement or otherwise) would be (iin whole or part) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code Internal Revenue Code, or any successor provision thereto, or any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), then such Payment then, any cash severance benefits contemplated by Section 1 under “Severance” above and any accelerated Severance Agreement (February 2013) 5 vesting of time-based RSUs, performance-based RSUs, and stock options will be equal reduced to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being extent necessary to make such payments and benefits not subject to the such Excise Tax or (2) the entire PaymentTax, whichever amount but only if such reduction results in a higher after-tax payment to you after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income and any additional taxes which could be obtained from a deduction of you would pay if such state payments and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Paymentbenefits were not reduced. If a reduction in the Payment cash severance and/or acceleration of vesting is to be made so that the Payment equals the Reduced Amountrequired, then, unless you elect a different order of reduction in advance (x) the Payment will be paid only to the extent permitted such an election may be made without resulting in any tax, penalty or interest under Code Section 409A), any cash severance payable in installment payments will be reduced first (with the Reduced Amount alternativeinstallments scheduled to be paid latest in time reduced first), and the Executive will have no rights to then any additional payments and/or benefits constituting the Paymentcash severance payable as a lump sum shall be reduced, and (y) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2) cancellation of then any accelerated vesting of equity incentive awards other than will be reduced (with time-based RSUs, performance-based RSUs, and stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is options to be reduced, such acceleration of vesting will be cancelled reduced in that order with the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid reduction made first as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change awards scheduled to vest latest in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executivetime).
Appears in 1 contract
Samples: Severance Agreement (Yahoo Inc)
Section 280G. (a) If the aggregate of all amounts and benefits due to the Executive under this Agreement or any payment other plan, program, agreement or benefit Executive will or may receive from arrangement of the Company or otherwise (a “Payment”) any of its Affiliates, which, if received by the Executive in full, would (i) constitute a “parachute paymentpayments,” within as such term is defined in and under Section 280G of the meaning Code (collectively, “Change of Control Benefits”), reduced by all Federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Section 4999 of the Code, is less than the amount the Executive would receive, after all such applicable taxes, if the Executive received aggregate Change of Control Benefits equal to an amount which is $1.00 less than three times the Executive's “base amount,” as defined in and determined under Section 280G of the Code, and (ii) but for this sentence, then such Change of Control Benefits shall be subject reduced or eliminated to the excise tax imposed extent necessary so that the Change of Control Benefits received by Section 4999 of the Code (the “Excise Tax”), then such Payment Executive will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Paymentnot constitute parachute payments. If a reduction in the Payment Change of Control Benefits is to be made so that the Payment equals the Reduced Amountnecessary, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order unless the Executive elects in writing a different order: , subject to the Company’s consent (1) which consent shall not be unreasonably withheld): first, a reduction of cash payments; (2) cancellation of accelerated vesting of payments not attributable to equity awards other than stock optionswhich vest on an accelerated basis; (3) second, the cancellation of accelerated vesting of stock optionsawards; third, the reduction of employee benefits; and (4) fourth, a reduction of in any other benefits paid to Executive. In the event that “parachute payments.” If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards's stock awards unless the Executive elects in writing a different order for cancellation.
(b) It is possible that after the determinations and selections made pursuant to Section 13.2(a) above the Executive will receive Change of Control Benefits that are, in the aggregate, either more or less than the amounts contemplated by Section 13.2(a) above (hereafter referred to as an “Excess Payment” or “Underpayment,” respectively). In no event will If there is an Excess Payment, the Executive shall promptly repay the Company or any stockholder an amount consistent with this Section 13.2. If there is an Underpayment, the Company shall pay the Executive an amount consistent with this Section 13.2.
(c) The determinations with respect to this Section 13.2 shall be liable to Executive for any amounts not paid as a result of made by an independent auditor (the operation of this Section“Auditor”) compensated by the Company. The professional Auditor shall be the Company’s regular independent auditor, unless the Executive objects to the use of that firm, in which event the Auditor shall be a nationally-recognized United States public accounting firm engaged chosen by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged and approved by the Company is serving as accountant Executive (which approval shall not be unreasonably withheld or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunderdelayed). The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executive.15
Appears in 1 contract
Section 280G. If any payment or benefit Executive will or may receive from the Company or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment. If a reduction in the Payment is to be made so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executive.payable
Appears in 1 contract
Section 280G. If any payment (a) Notwithstanding anything contained in this Agreement to the contrary, in the event that the payments and benefits provided pursuant to this Agreement, together with all other payments and benefits received or benefit to be received by Executive will or may receive from the Company or otherwise (a “PaymentPayments”) would (i) ), constitute a “parachute paymentpayments” within the meaning of Code Section 280G of the CodeG, and (ii) and, but for this sentenceSection 4, would be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then such Payment will the Payments shall be equal made to the Reduced Amount (defined below). The “Reduced Amount” will be Executive either (li) the largest portion of the Payment that in full or (ii) as to such lesser amount as would result in no portion of the Payment (after reduction) Payments being subject to the Excise Tax or (2) the entire a “Reduced Payment”), whichever amount after of the foregoing amounts, taking into account all applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes)Tax, results in Executive’s receipt, receipt on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of the PaymentPayments may be subject to the Excise Tax. If For the avoidance of doubt, the Payments shall include acceleration of vesting of equity awards granted by TuSimple that vest based on service to TuSimple and that accelerate in connection with a reduction Change in the Payment is to be made so that the Payment equals the Reduced AmountControl of TuSimple, (x) the Payment will be paid but only to the extent permitted under the such acceleration of vesting is deemed a parachute payment with respect to a Change in Control of TuSimple.
(b) For purposes of determining whether to make a Reduced Amount alternativePayment, if applicable, TuSimple shall cause to be taken into account all federal, state and local income and employment taxes and excise taxes applicable to the Executive will (including the Excise Tax). If a Reduced Payment is made, TuSimple shall reduce or eliminate the Payments in the following order, unless (to the extent permitted by Section 409A of the Code) Executive elects to have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur applied in the following a different order: (1) cancellation of accelerated vesting of options with no intrinsic value, (2) reduction of cash payments; , (23) cancellation of accelerated vesting of equity awards other than stock options; , (34) cancellation of accelerated vesting of stock options; options with intrinsic value and (45) reduction of other benefits paid to the Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards. In no the event will that cash payments or other benefits are reduced, such reduction shall occur in reverse order beginning with payments or benefits which are to be paid farthest in time from the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control determination. For avoidance of doubt, an option will perform be considered to have no intrinsic value if the foregoing calculations. If exercise price of the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect shares subject to the option exceeds the fair market value of such shares.
(c) All determinations by such firm required to be made under this Section 4 (including whether any of the Payments are parachute payments and whether to make a Reduced Payment) will be made by a nationally
(d) As a result of uncertainty in the application of Sections 4999 and 280G of the Code at the time of the initial determination by the accounting firm hereunder, it is possible that payments will have been made by TuSimple which should not have been made (an “Overpayment”) or that additional payments which will not have been made by TuSimple could have been made (an “Underpayment”), consistent in each case with the calculation of whether and to what extent a Reduced Payment shall be made hereunder. If In either event, the tax accounting firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the event that the accounting firm determines that an Overpayment has occurred, the Executive shall promptly repay, or transfer, to TuSimple the amount of any such Overpayment; provided, however, that no Excise Tax amount shall be payable, or transferable, by the Executive to TuSimple if and to the extent that such payment or transfer would not reduce the amount that is payable subject to taxation under Section 4999 of the Code. In the event that the accounting firm determines that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by TuSimple to or for the benefit of the Executive, together with interest at the applicable federal rate provided in Section 7872(f)(2) of the Code.
(e) If this Section 4 is applicable with respect to an Executive’s receipt of a Reduced Payment, either before it shall supersede any contrary provision of any plan, arrangement or after agreement governing the application of Executive’s rights to the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such PaymentPayments. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executive5.
Appears in 1 contract
Samples: Severance and Change in Control Agreement (TuSimple Holdings Inc.)
Section 280G. If any payment or benefit that the Executive will or may receive from following a change of control of the Company Company, the Executive’s termination of employment, or otherwise otherwise, whether or not payable or provided under this Agreement (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will shall be equal reduced to the Reduced Amount (defined below)Amount. The “Reduced Amount” will shall be either (lA) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2B) the entire largest portion, up to and including the total amount, of the Payment, whichever amount of the amounts determined under (A) and (B), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the Executive’s receipt, on an after-tax basis, of the greatest greater amount of the PaymentPayment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in the Payment payments or benefits constituting “parachute payments” is to be made necessary so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of outstanding equity awards other than stock options; (3) cancellation of accelerated vesting of stock optionsawards; and (4) reduction of other benefits paid to Executiveemployee benefits. In the event that acceleration of vesting of outstanding equity award compensation awards is to be reduced, such acceleration of vesting will shall be cancelled undertaken in the reverse order of the date of grant of the Executive’s outstanding equity awards. In no event All calculations and determinations made pursuant this Section 9(i) will the Company be made by an independent accounting or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional consulting firm engaged or independent tax counsel appointed by the Company for general tax purposes as of (the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by “Tax Counsel”) whose determinations shall be conclusive and binding on the Company is serving as accountant or auditor and the Executive for all purposes. For purposes of making the acquirercalculations and determinations required by this Section 9(i), the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a PaymentCounsel may rely on reasonable, either before or after good faith assumptions and approximations concerning the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations Section 280G of the tax firm made hereunder will be final, binding Code and conclusive upon the Company and Executive.Section 4999 of the
Appears in 1 contract
Section 280G. (a) If the aggregate of all amounts and benefits due to the Executive under this Agreement or any payment other plan, program, agreement or benefit Executive will or may receive from arrangement of the Company or otherwise (a “Payment”) any of its Affiliates, which, if received by the Executive in full, would (i) constitute a “parachute paymentpayments,” within as such term is defined in and under Section 280G of the meaning Code (collectively, “Change of Control Benefits”), reduced by all Federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Section 4999 of the Code, is less than the amount the Executive would receive, after all such applicable taxes, if the Executive received aggregate Change of Control Benefits equal to an amount which is $1.00 less than three times the Executive's “base amount,” as defined in and determined under Section 280G of the Code, and (ii) but for this sentence, then such Change of Control Benefits shall be subject reduced or eliminated to the excise tax imposed extent necessary so that the Change of Control Benefits received by Section 4999 of the Code (the “Excise Tax”), then such Payment Executive will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Paymentnot constitute parachute payments. If a reduction in the Payment Change of Control Benefits is to be made so that the Payment equals the Reduced Amountnecessary, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order unless the Executive elects in writing a different order: , subject to the Company’s consent (1) which consent shall not be unreasonably withheld): first, a reduction of cash payments; (2) cancellation of accelerated vesting of payments not attributable to equity awards other than stock optionswhich vest on an accelerated basis; (3) second, the cancellation of accelerated vesting of stock optionsawards; third, the reduction of employee benefits; and (4) fourth, a reduction of in any other benefits paid to Executive. In the event that “parachute payments.” If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards's stock awards unless the Executive elects in writing a different order for cancellation.
(b) It is possible that after the determinations and selections made pursuant to Section 13.2(a) above the Executive will receive Change of Control Benefits that are, in the aggregate, either more or less than the amounts contemplated by Section 13.2(a) above (hereafter referred to as an “Excess Payment” or “Underpayment,” respectively). In no event will If there is an Excess Payment, the Executive shall promptly repay the Company or any stockholder an amount consistent with this Section 13.2. If there is an Underpayment, the Company shall pay the Executive an amount consistent with this Section 13.2.
(c) The determinations with respect to this Section 13.2 shall be liable to Executive for any amounts not paid as a result of made by an independent auditor (the operation of this Section“Auditor”) compensated by the Company. The professional Auditor shall be the Company’s regular independent auditor, unless the Executive objects to the use of that firm, in which event the Auditor shall be a nationally-recognized United States public accounting firm engaged . 14 chosen by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged and approved by the Company is serving as accountant Executive (which approval shall not be unreasonably withheld or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunderdelayed). The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executive.15
Appears in 1 contract
Section 280G. If any payment or benefit Executive will or may receive from the Company or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment. If a reduction in the Payment is to be made so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executive.Excise
Appears in 1 contract
Section 280G. If any payment (a) Notwithstanding anything contained in this Agreement to the contrary, in the event that the payments and benefits provided pursuant to this Agreement, together with all other payments and benefits received or benefit to be received by Executive will or may receive from the Company or otherwise (a “PaymentPayments”) would (i) ), constitute a “parachute paymentpayments” within the meaning of Code Section 280G of the CodeG, and (ii) and, but for this sentenceSection 4, would be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then such Payment will the Payments shall be equal made to the Reduced Amount (defined below). The “Reduced Amount” will be Executive either (li) the largest portion of the Payment that in full or (ii) as to such lesser amount as would result in no portion of the Payment (after reduction) Payments being subject to the Excise Tax or (2) the entire a “Reduced Payment”), whichever amount after of the foregoing amounts, taking into account all applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes)Tax, results in Executive’s receipt, receipt on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of the PaymentPayments may be subject to the Excise Tax. If For the avoidance of doubt, the Payments shall include acceleration of vesting of equity awards granted by TuSimple that vest based on service to TuSimple and that accelerate in connection with a reduction Change in the Payment is to be made so that the Payment equals the Reduced AmountControl of TuSimple, (x) the Payment will be paid but only to the extent permitted under the such acceleration of vesting is deemed a parachute payment with respect to a Change in Control of TuSimple.
(b) For purposes of determining whether to make a Reduced Amount alternativePayment, if applicable, TuSimple shall cause to be taken into account all federal, state and local income and employment taxes and excise taxes applicable to the Executive will (including the Excise Tax). If a Reduced Payment is made, TuSimple shall reduce or eliminate the Payments in the following order, unless (to the extent permitted by Section 409A of the Code) Executive elects to have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur applied in the following a different order: (1) cancellation of accelerated vesting of options with no intrinsic value, (2) reduction of cash payments; , (23) cancellation of accelerated vesting of equity awards other than stock options; , (34) cancellation of accelerated vesting of stock options; options with intrinsic value and (45) reduction of other benefits paid to the Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards. In no the event will that cash payments or other benefits are reduced, such reduction shall occur in reverse order beginning with payments or benefits which are to be paid farthest in time from the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change in control determination. For avoidance of doubt, an option will perform be considered to have no intrinsic value if the foregoing calculations. If exercise price of the tax firm so engaged by the Company is serving as accountant or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect shares subject to the option exceeds the fair market value of such shares.
(c) All determinations by such firm required to be made hereunderunder this Section 4 (including whether any of the Payments are parachute payments and whether to make a Reduced Payment) will be made by a nationally recognized independent accounting firm selected by TuSimple. If For purposes of making the tax calculations required by this section, the accounting firm determines that no Excise Tax is payable with respect to a Paymentmay make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonably, either before or after good faith interpretations concerning the application of Code Sections 280G and 4999. TuSimple will bear the Reduced Amount, it will furnish costs that the Company and Executive accounting firm may reasonably incur in connection with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Paymentthe calculations contemplated by this Section 4. Any good faith determinations of the tax firm made hereunder The accounting firm’s determination will be final, binding on both Executive and conclusive upon the Company and ExecutiveTuSimple absent manifest error.
Appears in 1 contract
Samples: Severance and Change in Control Agreement (TuSimple Holdings Inc.)
Section 280G. (a) If the aggregate of all amounts and benefits due to the Executive under this Agreement or any payment other plan, program, agreement or benefit Executive will or may receive from arrangement of the Company or otherwise (a “Payment”) any of its Affiliates, which, if received by the Executive in full, would (i) constitute a “parachute paymentpayments,” within as such term is defined in and under Section 280G of the meaning Code (collectively, “Change of Control Benefits”), reduced by all Federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Section 4999 of the Code, is less than the amount the Executive would receive, after all such applicable taxes, if the Executive received aggregate Change of Control Benefits equal to an amount which is $1.00 less than three times the Executive’s “base amount,” as defined in and determined under Section 280G of the Code, and (ii) but for this sentence, then such Change of Control Benefits shall be subject reduced or eliminated to the excise tax imposed extent necessary so that the Change of Control Benefits received by Section 4999 of the Code (the “Excise Tax”), then such Payment Executive will be equal to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (2) the entire Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Paymentnot constitute parachute payments. If a reduction in the Payment Change of Control Benefits is to be made so that the Payment equals the Reduced Amountnecessary, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will shall occur in the following order unless the Executive elects in writing a different order: , subject to the Company’s consent (1) which consent shall not be unreasonably withheld): first, a reduction of cash payments; (2) cancellation of accelerated vesting of payments not attributable to equity awards other than stock optionswhich vest on an accelerated basis; (3) second, the cancellation of accelerated vesting of stock optionsawards; third, the reduction of employee benefits; and (4) fourth, a reduction of in any other benefits paid to Executive. In the event that “parachute payments.” If acceleration of vesting of equity stock award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of the Executive’s equity awardsstock awards unless the Executive elects in writing a different order for cancellation.
(b) It is possible that after the determinations and selections made pursuant to Section 13.2(a) above the Executive will receive Change of Control Benefits that are, in the aggregate, either more or less than the amounts contemplated by Section 13.2(a) above (hereafter referred to as an “Excess Payment” or “Underpayment,” respectively). In no event will If there is an Excess Payment, the Executive shall promptly repay the Company or any stockholder an amount consistent with this Section 13.2. If there is an Underpayment, the Company shall pay the Executive an amount consistent with this Section 13.2.
(c) The determinations with respect to this Section 13.2 shall be liable to Executive for any amounts not paid as a result of made by an independent auditor (the operation of this Section“Auditor”) compensated by the Company. The professional Auditor shall be the Company’s regular independent auditor, unless the Executive objects to the use of that firm, in which event the Auditor shall be a nationally-recognized United States public accounting firm engaged chosen by the Company for general tax purposes as of the day prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged and approved by the Company is serving as accountant Executive (which approval shall not be unreasonably withheld or auditor for the acquirer, the Company will appoint a nationally recognized tax firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executivedelayed).
Appears in 1 contract
Section 280G. If (i) Notwithstanding any provision of this Agreement to the contrary, if any payment or benefit Executive will or may Xxxxxxxxxx would receive from the Company pursuant to this Agreement or otherwise (a collectively, the “PaymentPayments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) and, but for this sentence, would be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then such Payment will be equal to the Reduced Amount (defined below). The “Reduced Amount” aggregate amount of the Payments will be either (li) the largest portion of the Payment Payments that would result in no portion of the Payment Payments (after reduction) being subject to the Excise Tax or (2ii) the entire PaymentPayments, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s Xxxxxxxxxx’ receipt, on an after-tax basis, of the greatest amount of the PaymentPayments. If a Any reduction in the Payment is to Payments required by this Section 7(b)(i) will be made so that the Payment equals the Reduced Amount, (x) the Payment will be paid only to the extent permitted under the Reduced Amount alternative, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2) cancellation reduction of accelerated vesting of equity awards other than stock options; (3) cancellation reduction of accelerated vesting of stock options; and (4) reduction of other benefits paid or provided to ExecutiveXxxxxxxxxx. In the event that acceleration of vesting of equity award compensation awards is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive’s Xxxxxxxxxx’ equity awards. In no event If two or more equity awards are granted on the same date, each award will the Company or any stockholder be liable to Executive for any amounts not paid as reduced on a result of the operation of this Section. pro-rata basis.
(ii) The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the change event that might reasonably be anticipated to result in control 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 acquireracquiring company, the Company will appoint a nationally recognized tax firm to make the determinations required hereunderby this Section. The Company will bear all expenses with respect to the determinations by such firm required to be made hereunderby this Section. If The Company and Xxxxxxxxxx shall furnish such tax firm such information and documents as the tax firm determines that no Excise Tax is payable may reasonably request in order to make its required determination. The tax firm will provide its calculations, together with respect detailed supporting documentation, to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such PaymentXxxxxxxxxx as soon as practicable following its engagement. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and ExecutiveXxxxxxxxxx.
Appears in 1 contract
Samples: Employment Agreement (Groupon, Inc.)
Section 280G. If any payment or benefit Executive will or may receive from (a) In the Company event that the severance and other benefits provided for in this Agreement or otherwise (a “Payment”) would payable to the Executive under any other plan or arrangement (i) constitute a “parachute paymentpayments” within the meaning of Section 280G of the CodeCode (“280G Payments”), and (ii) but for this sentenceSection 9, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment the 280G Payments will be equal either:
(i) delivered in full, or
(ii) delivered as to the Reduced Amount (defined below). The “Reduced Amount” will be either (l) the largest portion of the Payment that such lesser extent which would result in no portion of the Payment (after reduction) such benefits being subject to the Excise Tax or (2) the entire PaymentTax, whichever amount after of the foregoing amounts, taking into account all the applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate, net excise tax imposed by Section 4999 of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes)Code, results in Executive’s receipt, the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the PaymentCode. If a reduction in the Payment 280G Payments is to be made necessary so that the Payment equals the Reduced Amount, (x) the Payment will be paid only no portion of such benefits are subject to the extent permitted under the Reduced Amount alternativeExcise Tax, and the Executive will have no rights to any additional payments and/or benefits constituting the Payment, and (y) reduction in payments and/or benefits will occur in the following order: (1) reduction of cash payments; (2i) cancellation of accelerated vesting awards granted “contingent on a change in ownership or control” (within the meaning of equity awards other than stock optionsCode Section 280G); (3ii) cancellation a pro rata reduction of accelerated vesting (A) cash payments that are subject to Section 409A as deferred compensation and (B) cash payments not subject to Section 409A of stock optionsthe Code; (iii) a pro rata reduction of (A) employee benefits that are subject to Section 409A as deferred compensation and (B) employee benefits not subject to Section 409A; and (4iv) reduction a pro rata cancellation of other benefits paid (A) accelerated vesting equity awards that are subject to Executive. Section 409A as deferred compensation and (B) equity awards not subject to Section 409A. In the event that acceleration of vesting of equity award compensation awards is to be reducedcancelled, such acceleration of vesting will be cancelled in the reverse order of the date of grant of the Executive’s equity awards. In no event will Unless Executive and the Company or otherwise agree in writing, any stockholder determination required under this Section 9 will be liable to Executive for any amounts not paid as a result of the operation of this Section. The professional firm engaged made in writing by the Company for general tax purposes as of the day Company’s independent public accountants immediately prior to the effective date of the change in control will perform the foregoing calculations. If the tax firm so engaged by of the Company is serving as accountant or auditor for such other person or entity to which the acquirerparties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 9, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Executive and the Company will appoint a nationally recognized tax firm furnish to the Firm such information and documents as the Firm may reasonably request in order to make the determinations required hereundera determination under this Section 8. The Company will bear all expenses costs the Firm may incur in connection with respect to the determinations any calculations contemplated by such firm required to be made hereunder. If the tax firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company and Executive with documentation that no Excise Tax is reasonably likely to be imposed with respect to such Payment. Any good faith determinations of the tax firm made hereunder will be final, binding and conclusive upon the Company and Executivethis Section 9.
Appears in 1 contract
Samples: Change in Control and Severance Agreement (CrowdStrike Holdings, Inc.)