Termination Payment. (i) The “Termination Payment” shall be an amount equal to (A) $275,000 or the Executive’s annual base salary immediately prior to the termination of the Executive’s employment, whichever is greater, plus (B) $192,500 or the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs, whichever is greater. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh (7th) month following the month in which the Separation from Service occurs, and in such event, the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterly. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base
Appears in 1 contract
Samples: Executive Employment Agreement (Hudson Highland Group Inc)
Termination Payment. (i) The “Termination Payment” shall be an amount equal to the Annual Base Salary (A) $275,000 or determined as of the Executive’s annual base salary time of the Change in Control of the Company or, if higher, immediately prior to the termination date the Notice of Termination is given). Subject to Section 8(a)(ii), the Executive’s employment, whichever is greater, plus (B) $192,500 or the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs, whichever is greater. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs, and in such event, the Termination Payment shall be accompanied by a payment of interest calculated using at the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “applicable federal funds rate”, such rate to be determined on the Termination Date, compounded quarterly. Notwithstanding the foregoing, subject to Section 8 (a)(ii), in the event the Executive’s Termination Date is pursuant to Section 2(b), the Termination Payment shall be paid on the sixtieth (60th) calendar day after the date of the Executive’s termination Change in Control of employmentthe Company (as defined without reference to Section 2(b)), compounded quarterlywithout interest. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement.
(ii) Notwithstanding any other provision It is a condition of this Agreement, if any portion payment of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then the Company shall pay that the Executive an additional amount (deliver a full release to the “Gross-Up Payment”) Company, in such that the net amount retained form as is reasonably determined by the Executive after deduction of any excise tax imposed under Section 4999 Company, no later than eight (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal 8) days prior to the Total Payments. For purposes of determining date the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Termination Payment is to be made and state and local income taxes at paid pursuant to Section 8 (a)(i). If the highest marginal rate of taxation in Executive does not timely deliver a full release to the state and locality of Company, or if the Executive’s domicile for income tax purposes on Executive delivers such a release but revokes it (to the extent he is able to do so) prior to the date the Gross-Up Termination Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company Executive shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal not be entitled to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Termination Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base
Appears in 1 contract
Samples: Key Executive Change in Control Agreement (AgFeed Industries, Inc.)
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9(b)(ii) hereof, the Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s annual base salary 's Annual Base Salary (determined as of the time of the Change in Control of the Company or, if higher, immediately prior to the termination date the Notice of the Executive’s employment, whichever Termination is greater, given) plus (B) $192,500 or an amount equal to the greater of the Executive’s 's target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination Termination Date occurs or the bonus the Executive received in the year prior to the Change in Control of the Company (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as "Annual Cash Compensation"), times (C) the number of years or fractional portion thereof remaining in the Employment Period determined as of the Termination Date; provided, however, that such amount shall not be less than the greater of (i) the amount of the Executive’s employment occurs, whichever is greater's Annual Cash Compensation or (ii) the severance benefits to which the Executive would have been entitled under the Company's severance policies and practices in effect immediately prior to the Change in Control of the Company. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh ten (7th10) month following the month in which the Separation from Service occurs, and in such event, business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s 's release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Executive to advise the Executive as to matters relating to the computation of benefits due and payable under this Subsection 9(b).
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company Employer (in the aggregate, “"Total Payments”"), would constitute an “"excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, ," then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall Payments to be equal made to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at reduced such that the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality value of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined aggregate Total Payments that the Executive is entitled to a Gross-Up Payment, but that receive shall be One Dollar ($1) less than the Total Payments would not be maximum amount which the Executive may receive without becoming subject to the Excise Tax if the Total Payments were reduced tax imposed by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G 4999 of the Code (or any successor provision), ) or which the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) Company may pay without loss of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Basededuction under
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Wisconsin Power & Light Co)
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9(b)(ii) hereof, the Termination Payment” Payment shall be an amount equal to the Employee’s Annual Base Salary (A) $275,000 or determined as of the Executive’s annual base salary time of the Change in Control of the Company or, if higher, immediately prior to the termination date the Notice of Termination is given); provided, however, that such amount shall not be less than the Executive’s employment, whichever is greater, plus (B) $192,500 or severance benefits to which the Executive’s target annual bonus Employee would have been entitled under the Company’s Senior Management Bonus Plan for severance policies and practices in effect immediately prior to the year Change in which the termination Control of the Executive’s employment occurs, whichever is greaterCompany. The Termination Payment shall be paid to the Executive Employee in cash equivalent on the first day of the seventh (7th) month following the month in which 10 business days after the Separation from Service occursService, and provided that in such eventthe event the Employee’s Termination Date is pursuant to Section 2(b), the Termination Payment lump sum payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on paid 10 business days after the date of the Executive’s termination Change in Control of employment, compounded quarterlythe Company (as defined without reference to Section 2(b)). Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive Employee shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive Employee securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive Employee of the Termination Payment shall constitute the ExecutiveEmployee’s release of any rights of the Executive Employee to, any other cash severance payments under any Company severance policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Employee to advise the Employee as to matters relating to the computation of benefits due and payable under this Subsection 9(b); the payment of any such amount shall be made promptly upon submission of the proof of such expense, but in no event later than December 31 of the second calendar year following the calendar year in which the Employee’s Separation from Service occurs.
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “excess parachute payment,” as defined in Section 280G (or any successor provision) of the Code, then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement Employee shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, such that the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) value of the Code and such “parachute payments” aggregate Total Payments that the Employee is entitled to receive shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2One Dollar ($1) (or any successor provision) of less than the Code. Promptly following a Covered Termination or notice by maximum amount which the Company Employee may receive without becoming subject to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Basetax
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Interstate Power & Light Co)
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9(b)(ii) hereof, the Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s 's annual base salary salary, at the highest rate as in effect at any time during the 180-day period immediately prior to the termination Change in Control of the Executive’s employmentCompany, whichever is greateras adjusted upward, from time to time, pursuant to Section 6 hereof, plus (B) $192,500 or the Executive’s target amount of the average annual bonus under the Company’s Senior Management Bonus Plan award (determined on an annualized basis for the any bonus award paid for a period of less than one year in and excluding any year for which the termination Executive did not participate in any bonus plan) paid to the Executive with respect to the three complete fiscal years preceding the Termination Date (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as "Annual Cash Compensation"), times (C) the lesser of (1) 1.99 and (2) the number of years or fractional portion thereof remaining in the Employment Period determined as of the Executive’s employment occurs, whichever is greaterTermination Date. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh (7th) month following the month in which the Separation from Service occurs, and in such event, ten business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s 's release of any rights of the Executive to, any other cash severance payments under any Company (or Employer) severance policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Executive to advise the Executive as to matters relating to the computation of benefits due and payable under this Subsection 9(b).
(ii) (A) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company or its affiliates (in the its aggregate, “"Total Payments”"), would constitute an “"excess parachute payment” " that is subject to the tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as defined in Section 280G amended (the "Code"), or any successor provision) of the Code, then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall Payments to be equal made to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at reduced such that the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality value of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined aggregate Total Payments that the Executive is entitled to a Gross-Up Payment, but that receive shall be One Dollar ($1) less than the Total Payments would not be maximum amount which the Executive may receive without becoming subject to the Excise Tax if the Total Payments were reduced tax imposed by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G 4999 of the Code (or any successor provision), ; provided that the Executive and foregoing reduction in the Company, at amount of Total Payments shall not apply if the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National After-Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable Value to the Executive (which may be regular outside counsel of the Total Payments prior to reduction in accordance with Subsection 9(b)(ii)(A) is greater than the After-Tax Value to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Executive if Total Payments to the Safe Harbor Cap, as the case may be. As used are reduced in this Agreement, the term “Baseaccordance with Subsection 9(b)(ii)(A).
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Wisconsin Public Service Corp)
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9(b)(ii) hereof, the Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s annual base salary salary, at the highest rate as in effect at any time during the 180-day period immediately prior to the termination Change in Control of the Executive’s employmentCompany, whichever is greateras adjusted upward, from time to time, pursuant to Section 6 hereof, plus (B) $192,500 or the Executive’s target amount of the average annual bonus under the Company’s Senior Management Bonus Plan award (determined on an annualized basis for the any bonus award paid for a period of less than one year in and excluding any year for which the termination Executive did not participate in any bonus plan) paid to the Executive with respect to the three complete fiscal years preceding the Termination Date (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as “Annual Cash Compensation”), times (C) the lesser of (1) 2.99 and (2) the number of years or fractional portion thereof remaining in the Employment Period determined as of the Executive’s employment occurs, whichever is greaterTermination Date. Long-term incentive awards are not considered for this purpose. The Termination Payment shall be paid to the Executive in cash equivalent on the first last business day of the seventh (7th) month following the month in which occurs the Executive’s Separation from Service occurs, and in such event, the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time as soon as practicable after, but in no event later than 2½ months following the scheduled payment date in the case of an Executive who is deemed to time as the “federal funds rate”, such rate have a Covered Termination pursuant to be determined on the date of the Executive’s termination of employment, compounded quarterlySection 2(b)). Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company (or Employer) severance policy, practice or agreement; provided that if the Executive has received severance payments under any other Company (or Employer) severance policy, practice or agreement prior to the date of the Termination Payment hereunder, the Termination Payment will be reduced by the amount of the severance payment received by the Executive under such other policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Executive to advise the Executive as to matters relating to the computation of benefits due and payable under this Subsection 9(b).
(ii) (A) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company or its affiliates (in the its aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of that is subject to the Code, then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (but not any federal, state or local income taxthe “Code”), or employment tax) on any successor provision, then the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall Payments to be equal made to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at reduced such that the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality value of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined aggregate Total Payments that the Executive is entitled to a Gross-Up Payment, but that receive shall be One Dollar ($1) less than the Total Payments would not be maximum amount which the Executive may receive without becoming subject to the Excise Tax if the Total Payments were reduced tax imposed by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G 4999 of the Code (or any successor provision), ; provided that the Executive and foregoing reduction in the Company, at amount of Total Payments shall not apply if the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National After-Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable Value to the Executive (which may be regular outside counsel of the Total Payments prior to reduction in accordance with Subsection 9(b)(ii)(A) is greater than the After-Tax Value to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Executive if Total Payments to the Safe Harbor Cap, as the case may be. As used are reduced in this Agreement, the term “Baseaccordance with Subsection 9(b)(ii)(A).
Appears in 1 contract
Samples: Executive Employment and Severance Agreement (Integrys Energy Group, Inc.)
Termination Payment. (i) The “Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s annual base salary immediately prior to the termination of the Executive’s employment, whichever is greater, 's Annual Base Salary plus (B) $192,500 or an amount equal to the sum of the highest (x) annual bonus award (determined on an annualized basis for any bonus award paid for a period of less than one year and excluding any year for which the Executive did not participate in any bonus plan) and (y) long-term cash incentives earned with respect to, or, if more favorable to the Executive’s target annual bonus under , paid to (or deferred by) the Company’s Senior Management Bonus Plan for Executive in, any one fiscal year with respect to the year three fiscal years preceding the Termination Date (the aggregate amount set forth in which the termination of the Executive’s employment occurs(A) and (B) hereof shall hereafter be referred to as "Annual Cash Compensation"), whichever is greatertimes (C) three (3). The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh ten (7th10) month following the month in which the Separation from Service occurs, and in such event, business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by addition to any other severance payments to which the Executive of is entitled under the Termination Payment shall constitute Company's severance policies and practices in the Executive’s release of any rights of form most favorable to the Executive to, which were in effect at any other cash severance payments under any Company severance policy, practice or agreementtime during the 180-day period prior to the Effective Date.
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “aggregate "Total Payments”"), would constitute an “"excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then ," the Company shall pay the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and Code, any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(iiSubsection 9(b)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “"excess parachute payment” " and “"parachute payments” " shall have the meanings assigned to them in Section 280G of the Code (or any successor provision) of the Code and such “"parachute payments” " shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Baseshall
Appears in 1 contract
Samples: Executive Employment and Severance Agreement (Banta Corp)
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9(b)(ii) hereof, the Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s annual base salary rate, at the highest rate in effect at any time during the one hundred eighty (180) day period immediately prior to the termination Change in Control of the Executive’s employmentCompany, whichever is greateras adjusted upward, from time to time, pursuant to Section 6 hereof, plus (B) $192,500 or the amount of the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan (but not longterm) cash annual incentive award for the year in which occurs the termination of Covered Termination or if higher, the Executive’s employment occurstarget annual (but not long-term) cash annual incentive award for the year in which occurs the Change in Control of the Company (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as “Annual Cash Compensation”), whichever is greatertimes (C) 2.00. Long-term incentive awards are not considered for this purpose. The Termination Payment shall be paid to the Executive in cash equivalent on the first last business day of the seventh (7th) month following the month in which the Separation from Service occurs, and in such event, the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of occurs the Executive’s termination of employment, compounded quarterlySeparation from Service. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company (or Employer) severance policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Executive to advise the Executive as to matters relating to the computation of benefits due and payable under this Subsection 9(b).
(ii) (A) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company or its affiliates (in the its aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of that is subject to the Code, then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (but not any federal, state or local income taxthe “Code”), or employment tax) on any successor provision, then the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall Payments to be equal made to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at reduced such that the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality value of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined aggregate Total Payments that the Executive is entitled to a Gross-Up Payment, but that receive shall be One Dollar ($1) less than the Total Payments would not be maximum amount which the Executive may receive without becoming subject to the Excise Tax if the Total Payments were reduced tax imposed by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G 4999 of the Code (or any successor provision), ; provided that the Executive and foregoing reduction in the Company, at amount of Total Payments shall not apply if the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized after-tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable value to the Executive (which may be regular outside counsel of the Total Payments prior to reduction in accordance with Subsection 9(b)(ii)(A) is greater than the after-tax value to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Executive if Total Payments to the Safe Harbor Cap, as the case may be. As used are reduced in this Agreement, the term “Baseaccordance with Subsection 9(b)(ii)(A).
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Integrys Energy Group, Inc.)
Termination Payment. (i) The “Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s annual base salary immediately prior to the termination of the Executive’s employment, whichever is greater, 's Annual Base Salary plus (B) $192,500 or an amount equal to the sum of the highest (x) annual bonus award (determined on an annualized basis for any bonus award paid for a period of less than one year and excluding any year for which the Executive did not participate in any bonus plan) and (y) long-term cash incentives earned with respect to, or, if more favorable to the Executive’s target annual bonus under , paid to (or deferred by) the Company’s Senior Management Bonus Plan for Executive in, any one fiscal year with respect to the year three fiscal years preceding the Termination Date (the aggregate amount set forth in which the termination of the Executive’s employment occurs(A) and (B) hereof shall hereafter be referred to as "Annual Cash Compensation"), whichever is greatertimes (C) three (3). The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh ten (7th10) month following the month in which the Separation from Service occurs, and in such event, business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by addition to any other severance payments to which the Executive of is entitled under the Termination Payment shall constitute Company's severance policies and practices in the Executive’s release of any rights of form most favorable to the Executive to, which were in effect at any other cash severance payments under any Company severance policy, practice or agreementtime during the 180-day period prior to the Effective Date.
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “aggregate "Total Payments”"), would constitute an “"excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then ," the Company shall pay the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and Code, any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(iiSubsection 9(b)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “"excess parachute payment” " and “"parachute payments” " shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive ) and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess such "parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base"
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Banta Corp)
Termination Payment. (i) The “Unless reduced pursuant to the following sentence, the Termination Payment” Payment shall be an amount equal to two (A2) $275,000 or times the sum of (i) the Executive’s 's annual base salary immediately prior to in effect on the termination Termination Date plus (ii) fifty percent (50%) of the Executive’s employment, whichever is greater, plus (B) $192,500 or maximum bonus the Executive’s target annual bonus Executive would have been entitled to receive under the Company’s Senior Management Bonus Plan 's bonus plan applicable to the Executive for the fiscal year in which the termination Termination Date takes place. The Termination Payment may be reduced in accordance with Section 4.3 of the Executive’s employment occursNorthland Cranberries, whichever is greaterInc. Severance and Stay Bonus Plan. The Except as otherwise provided herein, the Termination Payment shall be paid to the Executive in cash equivalent on no later than ten (10) business days after the first day of the seventh (7th) month following the month in which the Separation from Service occursTermination Date; provided, and in such eventhowever, the Termination Payment shall be accompanied by a payment of interest calculated using paid to the annual rate of interest announced Executive immediately upon receipt by the Federal Reserve Board Company of a Notice of Termination relating to a Discretionary Termination (or regardless of any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the differing effective date of the Executive’s termination of employment, compounded quarterly's employment termination). Such lump sum payment shall not be reduced by any present value or similar factor, and the The Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, It is the intention of the Company and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement.
(ii) Notwithstanding any other provision of this Agreement, if any that no portion of the Termination Payment Payment, Accrued Benefits or any other payment or benefit under this Agreement, or payments to or for the benefit of the Executive under any other agreement with or plan of the Company Company, regardless of whether such payment or benefit was paid or provided for prior to the Covered Termination (in herein all collectively referred to as the aggregate, “"Total Payments”"), would constitute be deemed to be an “"excess parachute payment” " as defined in Section 280G (of the Code. It is agreed that the present value of the Total Payments and any other payments to or for the benefit of the Executive in the nature of compensation, receipt of which are contingent on the change of control of the Company and to which Section 280G of the Code or any successor provisionprovision thereto applies (in the aggregate "Total Benefits") of shall not exceed an amount equal to one dollar less than the Code, then the Company shall pay maximum amount which the Executive an additional amount (may receive without becoming subject to the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax provision (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to "Excise Tax") or which the Executive. For purposes Company may pay without loss of reducing the Total Payments to the Safe Harbor Cap, only amounts payable deduction under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision280G(a) of the Code and such “parachute payments” shall be valued as provided thereinor any successor provision thereto. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2280G(d)(4) (of the Code or any successor provisionprovision thereto. Within forty-five (45) of the Code. Promptly days following a Covered Termination or notice by the Company either party to the Executive other of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s 's expense, shall obtain the opinion of such legal counsel (which the opinion of legal counsel need not to be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors ), and reasonably acceptable to certified public accountants as the Executive (which may be regular outside counsel to the Company)choose, which opinion sets forth (Aa) the amount of the Base Period IncomeIncome (as defined below) of the Executive, (Bb) the amount and present value of Total PaymentsBenefits, and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or any other payment determined by such counsel to be includible in the reduction of any Total Payments Benefits, shall be reduced or eliminated as specified by the Executive in writing delivered to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “BaseCompany within thirty (30) days of his receipt of such
Appears in 1 contract
Samples: Executive Employment and Severance Agreement (Northland Cranberries Inc /Wi/)
Termination Payment. (i) The “Termination Payment” shall be an amount equal to (A) $275,000 or the Executive’s annual base salary immediately prior to the termination of the Executive’s employment, whichever is greater, plus (B) $192,500 or the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs, whichever is greater. The Termination Payment shall be paid in a lump sum and shall equal the product of (x) 2.0 and (y) the Employee's combined annual base salary and bonus, averaged over the most recent three (3) year period immediately prior to the Executive Change in cash equivalent on Control. With respect to the first day of the seventh (7th) month following the month year in which the Separation from Service occursEmployee's employment is terminated, the above calculation shall include the full year's base salary and any bonus or incentive compensation to which the Employee would have been entitled had the Employee's employment not been terminated in such event, year. In the event that Employee becomes entitled to the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or Payment, if any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterly. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment will be subject to the tax (the "Excise Tax") imposed by securing other employment or otherwise, nor will such Termination Payment be reduced by reason Section 4999 of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu ofInternal Revenue Code of 1986, and acceptance by as amended (the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement.
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”"Code"), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then the Company Employer shall pay the Executive to Employee, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive Employee, after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) Tax on the Total Payments, Termination Payment and any federal, state and local income tax, employment tax, tax and excise tax Excise Tax upon the payment provided for by this Section 9(c)(ii)paragraph, shall be equal to the Total PaymentsTermination Payment. For purposes of determining whether any of the Termination Payment will be subject to the Excise Tax and the amount of such Excise Tax, (x) any other payments or benefits received or to be received by Employee in connection with a Change in Control or the termination of Employee's employment (whether pursuant to the terms of this agreement or any other plan, arrangement or agreement with the Employer, any person whose actions result in a Change in Control or any person having such a relationship with the Employer or such person as to require attribution of stock ownership between the parties under section 318(a) of the Code) shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Employer's independent auditors and reasonably acceptable to Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code, (y) the amount of the Termination Payment which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Termination Payment or (B) the amount of excess parachute payments within the meaning of Sections 280G(b)(1) and (4) (after applying clause (x), above, and after deducting any excess parachute payments in respect of which payments have been made under this clause (y)), and (z) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Employer's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate rates of taxation in the state and locality of the Executive’s domicile for income tax purposes on residence upon the date the Gross-Up Payment is madeof termination, net of the maximum reduction in federal income taxes that may which could be obtained from the deduction of such state and local taxes. The Company In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Employee's employment, Employee shall pay repay to the Employer at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction plus interest on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by such repayment at the Executive under Section 4999 rate provided in section 1274(b)(2)(B) of the Code, plus an . In the event that the Excise Tax is determined to exceed the amount equal to taken into account hereunder at the additional taxes imposed on the Executive due to the Company’s reimbursement time of the excise tax and such additional taxes. In such event, termination of Employee's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, Employer shall make an additional gross-up payment in respect of such excess (plus any interest payable with respect to such excess) at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) time that the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any such excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Baseis finally determined.
Appears in 1 contract
Termination Payment. (i) The “Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s annual base salary 's Annual Base Salary (determined as of the time of the Change in Control of the Company or, if higher, immediately prior to the termination date the Notice of the Executive’s employment, whichever Termination is greater, given) plus (B) $192,500 or an amount equal to the greater of the Executive’s 's target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination Termination Date occurs or the bonus the Executive received in the year prior to the Change in Control of the Company (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as "Annual Cash Compensation"), times (C) the number of years or fractional portion thereof remaining in the Employment Period determined as of the Termination Date; provided, however, that such amount shall not be less than the greater of (i) the amount of the Executive’s employment occurs, whichever is greater's Annual Cash Compensation or (ii) the severance benefits to which the Executive would have been entitled under the Company's severance policies and practices in effect immediately prior to the Change in Control of the Company. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh ten (7th10) month following the month in which the Separation from Service occurs, and in such event, business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s 's release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Executive to advise the Executive as to matters relating to the computation of benefits due and payable under this Subsection 9(b).
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company Employer (in the aggregate, “aggregate "Total Payments”"), would constitute an “"excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then ," the Company shall pay the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and Code, any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(iiSubsection 9(b)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “"excess parachute payment” " and “"parachute payments” " shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “"parachute payments” " shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision) of the Code). Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision)Code, the Executive and the Company, at the Company’s 's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“"National Tax Counsel”") selected by the Company’s 's independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (Ai) the amount of the Base Period Income, (Bii) the amount and present value of Total Payments, (Ciii) the amount and present value of any excess parachute payments, and (Div) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may bePayment. As used in this Agreement, the term “Basethe
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Wisconsin Power & Light Co)
Termination Payment. Except as otherwise provided herein, the compensation and termination payments provided pursuant to this Section 3 shall be paid at such times and in such manner as payments normally would be made under Section 2 above and Exhibit B attached hereto and shall be subject to deductions and withholding as provided in Section 2(a) above.
(i) The “Termination Payment” shall be an amount equal In the event this Agreement and the Professional's employment hereunder are terminated by mutual agreement pursuant to (ASection 3(b)(i) $275,000 or the Executive’s annual base salary immediately prior to the termination of the Executive’s employment, whichever is greater, plus (B) $192,500 or the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs, whichever is greater. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh (7th) month following the month in which the Separation from Service occurs, and in such eventabove, the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s Professional's termination of employment, compounded quarterly. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement.
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Paymentpayments, if any, shall be reduced as mutually agreed in writing by such prior payment. Notwithstanding Professional and the foregoingCompany.
(ii) In the event this Agreement and the Professional's employment hereunder are terminated for cause pursuant to Section 3(b)(ii) above, if it the Company's sole obligation to Professional shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% provision of the Total Payments that would be treated as “parachute payments” under Section 280G (any payments or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced benefits pursuant to this provisionSection 2 above and Exhibit B attached hereto which have been earned but have not been provided through the date of termination.
(iii) For purposes of In the event this AgreementAgreement and the Professional's employment hereunder are terminated by Professional upon not less than one hundred twenty (120) days' prior written notice to the Company pursuant to Section 3(b)(iii) above, the terms “excess parachute payment” Company shall provide all payments and “parachute payments” shall benefits to Professional pursuant to Section 2 above and Exhibit B attached hereto which have been earned but have not been provided through the meanings assigned to them in Section 280G date of termination.
(or any successor provisioniv) In the event this Agreement and the Professional's employment hereunder are terminated by the death of the Code Professional pursuant to Section 3(b)(iv) above, the Company shall provide to the Professional's estate all payments and such “parachute payments” shall be valued as benefits pursuant to Section 2 above and Exhibit B attached hereto which have been earned but have not been provided therein. Present value for purposes through the date of the Professional's death.
(v) In the event this Agreement and the Professional's employment hereunder are terminated by the disability of Professional pursuant to Section 3(b)(v) above, the Company shall be calculated in accordance with provide to Professional all payments and benefits pursuant to Section 1274(b)(22 above and Exhibit B attached hereto which have been earned but have not been provided through the Date of Disability.
(vi) (or any successor provision) In the event this Agreement and the Professional's employment hereunder are terminated by the dissolution of the Code. Promptly following a Covered Termination Company or notice by the end of its operations at its Atkinson, Nebraska facility pursuant to Section 3(b)(vi) above, the Company shall provide to Professional all payments and benefits pursuant to Section 2 above and Exhibit B attached hereto which have been earned but have not been provided through the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G date of the Code (dissolution or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) end of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Baseoperations.
Appears in 1 contract
Termination Payment. (i) The “Termination Payment” shall be an amount equal to (A) $275,000 or the Executive’s annual base salary immediately prior As a condition to the Transfer described in paragraph (a) of subsection 7.3 and as a condition to termination of the Executive’s employmentthis Lease pursuant to paragraph (a) of subsection 7.3, whichever is greater, plus (B) $192,500 or the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs, whichever is greater. The Termination Payment Lessee shall be paid to the Executive in cash equivalent pay on the first day of the seventh Termination Date to Lessor, in immediately available funds, (7tha) month following the month in which the Separation from Service occurs, and in such event, the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterly. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement.
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Paymentexcess, if any, shall be reduced by such prior payment. Notwithstanding of (i) the foregoingaggregate of the Casualty Value in effect on the Termination Date, and, if it shall be determined that the Executive a Transfer pursuant to paragraph (a) of subsection 7.3 is entitled made to a Gross-Up Paymentan Other Owner or an Affiliate thereof, but that the Total Payments would not be subject an amount equal to the Excise Tax product of such Casualty Value and .05, over (ii) the purchase price actually paid to Lessor by the purchaser, after deduction therefrom of all costs, expenses and fees whatsoever payable by Lessor, as seller, and all fees and expenses including, without limitation, attorneys’ fees incurred by Lessor or Owner Participant in connection with such purchase and sale, plus (b) the Lessee Loan Balance, if any, on the Total Payments were reduced Termination Date, plus (c) all other sums then due and owing by an amount that is less than 10% Lessee to Lessor under any of the Total Payments that Operative Documents, including but not limited to all Rent due through the Termination Date (excluding any amount of Basic Rent due on such date which would be treated as “parachute payments” represent a payment in advance) and any premium on any Outstanding Bond and all other sums due under Section 280G the Bonds (or any successor provisionwithout duplication), minus (d) the Lessor Loan Balance, if any, on the Termination Date. To the extent the Lessor Loan Balance on the Termination Date exceeds the aggregate of the amounts denoted by clauses (a), (b) and (c) of the Codeimmediately preceding sentence, then Lessor shall pay an amount equal to such excess to Lessee on the amounts payable to the Executive under this Agreement shall be reduced (but not below zeroTermination Date.”
J. Subsection 11.6(c). Subsection 11.6(c) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction Existing Lease is hereby amended by adding at the end thereof the following new sentence: “For the avoidance of doubt, the parties hereto expressly agree that notwithstanding the use of the Total Payments singular terms “Nonseverable Alteration” and “Nonseverable Alteration Cost” herein, Lessee is expressly permitted to aggregate the Safe Harbor CapNonseverable Alteration Costs of one or more Nonseverable Alterations effected after June 30, no amounts payable under this Agreement shall be reduced 2005 within a period of 24 consecutive months during the Basic Term and any Renewal Term in seeking financing for the Nonseverable Alteration Costs of such Nonseverable Alterations pursuant to this provision.
(iii) For purposes of this Agreement, Agreement and the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) applicable provisions of the Code other Operative Documents, and such “parachute payments” shall be valued as provided therein. Present value for all purposes of this Agreement (including clause (ii) of subsection 6.1(c) hereof) and other relevant Operative Documents, such Nonseverable Alterations and Nonseverable Alteration Costs so aggregated shall be calculated deemed a “Nonseverable Alteration” and “Nonseverable Alteration Cost” as used herein and therein.” Lessee shall include in accordance with the report delivered to Owner Participant pursuant to Section 1274(b)(2) (or any successor provision) 11.7 hereof the information concerning the Nonseverable Alteration Costs of such Nonseverable Alterations made during the Code. Promptly following a Covered Termination or notice by period from the Company last previous report to the Executive date of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Basesuch report.
Appears in 1 contract
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9.2(ii), the Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s 's annual base salary salary, as in effect immediately prior to the termination Change in Control of the Executive’s employmentCompany, whichever is greateras adjusted upward, from time to time, pursuant to Section 6, plus (B) $192,500 or the Executive’s target amount of the highest annual bonus under award (determined on an annualized basis for any bonus award paid for a period of less than one year) paid to the Company’s Senior Management Bonus Plan for Executive with respect to the year two complete fiscal years preceding the Termination Date (the aggregate amount set forth in which the termination (A) and (B) hereof shall be referred to as "Annual Cash Compensation"), times (C) a factor of the Executive’s employment occurs, whichever is greater2.99. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh (7th) month following the month in which the Separation from Service occurs, and in such event, ten business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive Executive's securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by addition to any other severance payments to which the Executive is entitled under the Company's severance policies and practices as in effect immediately prior to the Change in Control of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreementCompany.
(ii) Notwithstanding any other provision of this Agreementcontrary provision, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “"excess parachute payment” as defined in ," then the Termination Payment shall be reduced such that the value of the Termination Payment the Executive will receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 280G 4999 of the Code (or any successor provision) or which the Company may pay without loss of deduction under Section 280G(a) of the Code, then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 Code (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “"excess parachute payment” " and “"parachute payments” " shall have the meanings assigned to them in Section 280G of the Code (or any successor provision) of the Code ), and such “"parachute payments” " shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), . If the Executive provisions of Sections 280G and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount 4999 of the Base Period IncomeCode (or any successor provisions) are repealed without succession, (Bthen this Section 9.2(ii) the amount and present value shall be of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment no further force or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Baseeffect.
Appears in 1 contract
Samples: Change of Control Employment Agreement (Belden Inc)
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9(b)(ii) hereof, the Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s annual base salary immediately prior to the termination of the Executive’s employment, whichever is greater's Annual Base Salary, plus (B) $192,500 or the Executive’s target amount of the highest annual bonus under the Company’s Senior Management Bonus Plan award (determined on an annualized basis for the any bonus award paid for a period of less than one year in and excluding any year for which the termination Executive did not participate in any bonus plan) paid to the Executive with respect to the three years preceding the Termination Date (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as "Annual Cash Compensation"), times the number of years or fractional portion thereof remaining in the Employment Period determined as of the Termination Date; provided, however, that such amount shall not be less than the amount of the Executive’s employment occurs, whichever is greater's Annual Cash Compensation. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh (7th) month following the month in which the Separation from Service occurs, and in such event, ten business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the The Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by addition to any other severance payments to which the Executive of is entitled under the Termination Payment shall constitute Company's severance policies and practices in the Executive’s release of any rights of form most favorable to the Executive to, which were in effect at any other cash severance payments under any Company severance policy, practice or agreementtime during the 180-day period prior to the Effective Date.
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “aggregate "Total Payments”"), would constitute an “"excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, ," then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall Payments to be equal made to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at reduced such that the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality value of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined aggregate Total Payments that the Executive is entitled to a Gross-Up Payment, but that receive shall be One Dollar ($1) less than the Total Payments would not be maximum amount which the Executive may receive without becoming subject to the Excise Tax if the Total Payments were reduced tax imposed by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G 4999 of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion () or which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Basethe
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Banta Corp)
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9(b)(ii) hereof, the Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s 's annual base salary salary, at the highest rate as in effect at any time during the 180-day period immediately prior to the termination Change in Control of the Executive’s employmentCompany, whichever is greateras adjusted upward, from time to time, pursuant to Section 6 hereof, plus (B) $192,500 or the Executive’s target amount of the average annual bonus under the Company’s Senior Management Bonus Plan award (determined on an annualized basis for the any bonus award paid for a period of less than one year in and excluding any year for which the termination Executive did not participate in any bonus plan) paid to the Executive with respect to the three complete fiscal years preceding the Termination Date (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as "Annual Cash Compensation"), times (C) the lesser of (1) 2.99 and (2) the number of years or fractional portion thereof remaining in the Employment Period determined as of the Executive’s employment occurs, whichever is greaterTermination Date. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh (7th) month following the month in which the Separation from Service occurs, and in such event, ten business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s 's release of any rights of the Executive to, any other cash severance payments under any Company (or Employer) severance policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Executive to advise the Executive as to matters relating to the computation of benefits due and payable under this Subsection 9(b).
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “"Total Payments”"), would constitute an “"excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, ," then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall Payments to be equal made to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at reduced such that the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality value of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined aggregate Total Payments that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not receive shall be subject to the Excise Tax if the Total Payments were reduced by an amount that is One Dollar ($1) less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to which the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Basereceive without
Appears in 1 contract
Samples: Executive Employment and Severance Agreement (WPS Resources Corp)
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9(b)(ii) hereof, the Termination Payment” Payment shall be an amount equal to (A) $275,000 or the ExecutiveEmployee’s annual base salary Annual Base Salary (determined as of the time of the Change in Control of the Company or, if higher, immediately prior to the termination date the Notice of the Executive’s employment, whichever Termination is greater, given) plus (B) $192,500 or an amount equal to the Executivegreater of the Employee’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination Termination Date occurs or the bonus the Employee received in the year prior to the Change in Control of the ExecutiveCompany (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as “Annual Cash Compensation”), times (C) the number of years or fractional portion thereof remaining in the Employment Period determined as of the Termination Date; provided, however, that such amount shall not be less than the greater of (i) the amount of the Employee’s employment occurs, whichever is greaterAnnual Cash Compensation or (ii) the severance benefits to which the Employee would have been entitled under the Company’s severance policies and practices in effect immediately prior to the Change in Control of the Company. The Termination Payment shall be paid to the Executive Employee in cash equivalent on the first day of the seventh ten (7th10) month following the month in which the Separation from Service occurs, and in such event, business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive Employee shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive Employee securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive Employee of the Termination Payment shall constitute the ExecutiveEmployee’s release of any rights of the Executive Employee to, any other cash severance payments under any Company severance policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Employee to advise the Employee as to matters relating to the computation of benefits due and payable under this Subsection 9(b).
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “excess parachute payment,” as defined in then the Total Payments to be made to the Employee shall be reduced such that the value of the aggregate Total Payments that the Employee is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Employee may receive without becoming subject to the tax imposed by Section 280G 4999 of the Code (or any successor provision) or which the Company may pay without loss of deduction under Section 280G(a) of the Code, then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 Code (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code (or any successor provision) of the Code ), and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(21274(b) (2) of the Code (or any successor provision) of the Code). Promptly Within 40 days following a Covered Termination or notice by the Company to the Executive Employee of its belief that there is a payment or benefit due the Executive Employee which will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision), the Executive Employee and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive Employee (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, Payments and (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments payments determined without regard to the Safe Harbor Cap, as the case may belimitations of this Subsection 9(b)(ii). As used in this AgreementSubsection 9(b)(ii), the term “BaseBase Period Income” means an amount equal to the Employee’s “annualized includable compensation for the base period” as defined in Section 280G(d)(l) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Employee. The opinion of National Tax Counsel shall be addressed to the Company and the Employee and shall be binding upon the Company and the Employee. If such National Tax Counsel opinion determines that there would be an excess parachute payment, the Termination Payment hereunder or any other payment or benefit determined by such counsel to be includable in Total Payments shall be reduced or eliminated as specified by the Employee in writing delivered to the Company within thirty days of his receipt of such opinion or, if the Employee fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. If such National Tax Counsel so requests in connection with the opinion required by this Section, the Employee and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Employee solely with respect to its status under Section 280G of the Code and the regulations thereunder.
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Interstate Power & Light Co)
Termination Payment. (i) The “Termination Payment” shall be an amount equal to (A) $275,000 or the Executive’s annual base salary immediately prior to the termination of the Executive’s employment, whichever is greater, employment plus (B) $192,500 or the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs, whichever is greater. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh ten (7th10) month following the month in which the Separation from Service occurs, and in such event, the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on business days after the date of the Executiveexecutive’s termination of employment, compounded quarterlyemployment with the Company. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement.
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Basesuch
Appears in 1 contract
Samples: Executive Employment Agreement (Hudson Highland Group Inc)
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9(b)(ii) hereof, the Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s 's annual base salary salary, at the highest rate as in effect at any time during the 180-day period immediately prior to the termination Change in Control of the Executive’s employmentCompany, whichever is greateras adjusted upward, from time to time, pursuant to Section 6 hereof, plus (B) $192,500 or the Executive’s target amount of the average annual bonus under the Company’s Senior Management Bonus Plan award (determined on an annualized basis for the any bonus award paid for a period of less than one year in and excluding any year for which the termination Executive did not participate in any bonus plan) paid to the Executive with respect to the three complete fiscal years preceding the Termination Date (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as "Annual Cash Compensation"), times (C) the lesser of (1) 2.99 and (2) the number of years or fractional portion thereof remaining in the Employment Period determined as of the Executive’s employment occurs, whichever is greaterTermination Date. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh (7th) month following the month in which the Separation from Service occurs, and in such event, ten business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s 's release of any rights of the Executive to, any other cash severance payments under any Company (or Employer) severance policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Executive to advise the Executive as to matters relating to the computation of benefits due and payable under this Subsection 9(b).
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “"Total Payments”"), would constitute an “"excess parachute payment” as defined in ," then the Total Payments to be made to the Executive shall be reduced such that the value of the aggregate Total Payments that the Executive is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 280G 4999 of the Code (or any successor provision) or which the Company may pay without loss of deduction under Section 280G(a) of the Code, then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 Code (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “"excess parachute payment” " and “"parachute payments” " shall have the meanings assigned to them in Section 280G 2806 of the Code (or any successor provision) of the Code ), and such “"parachute payments” " shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2280G(d)(4) of the Code (or any successor provision) ). Within forty days following delivery of the Code. Promptly following a Covered Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G 2806 of the Code (or any successor provision), the Executive and the Company, at the Company’s 's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s 's independent auditors and reasonably acceptable to the Executive in his sole discretion (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, Payments and (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments payments determined without regard to the Safe Harbor Cap, as the case may belimitations of this Subsection 9(b)(ii). As used in this AgreementSubsection 9(b)(ii), the term “Base"Base Period Income" means an amount equal to the Executive's "annualized includible compensation for the base period" as defined in Section 280G(d)(1) of the Code (or any successor provision). For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. Such opinion shall be dated as of the Termination Date and addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such opinion determines that there would be an excess parachute payment, the Termination Payment hereunder or any other payment or benefit determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Company within thirty days of his receipt of such opinion or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. If such legal counsel so requests in connection with the opinion required by this Section, the Executive and the Company shall obtain, at the Company's expense, and the legal counsel may rely on in providing the opinion, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive. If the provisions of Sections 2806 and 4999 of the Code (or any successor provisions) are repealed without succession, then this Section 9(b) (ii) shall be of no further force or effect.
Appears in 1 contract
Samples: Executive Employment and Severance Agreement (Wisconsin Public Service Corp)
Termination Payment. (i) The “Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s annual base salary immediately prior to the termination of the Executive’s employment, whichever is greater, 's Annual Base Salary plus (B) $192,500 or an amount equal to the sum of the highest (x) annual bonus award (determined on an annualized basis for any bonus award paid for a period of less than one year and excluding any year for which the Executive did not participate in any bonus plan) and (y) long-term cash incentives earned with respect to, or, if more favorable to the Executive’s target annual bonus under , paid to (or deferred by) the Company’s Senior Management Bonus Plan for Executive in, any one fiscal year with respect to the year three fiscal years preceding the Termination Date (the aggregate amount set forth in which the termination of the Executive’s employment occurs(A) and (B) hereof shall hereafter be referred to as "Annual Cash Compensation"), whichever is greatertimes (C) three (3). The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh ten (7th10) month following the month in which the Separation from Service occurs, and in such event, business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by addition to any other severance payments to which the Executive of is entitled under the Termination Payment shall constitute Company's severance policies and practices in the Executive’s release of any rights of form most favorable to the Executive to, which were in effect at any other cash severance payments under any Company severance policy, practice or agreementtime during the 180-day period prior to the Effective Date.
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “aggregate "Total Payments”"), would constitute an “"excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then ," the Company shall pay the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and Code, any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(iiSubsection 9(b)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “"excess parachute payment” " and “"parachute payments” " shall have the meanings assigned to them in Section 280G of the Code (or any successor provision) of the Code and such “"parachute payments” " shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision) of the Code). Promptly following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision)Code, the Executive and the Company, at the Company’s 's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“"National Tax Counsel”") selected by the Company’s 's independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Baseand
Appears in 1 contract
Samples: Executive Employment and Severance Agreement (Banta Corp)
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9(b)(ii) hereof, the Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s annual base salary rate, at the highest rate in effect at any time during the one hundred eighty (180) day period immediately prior to the termination Change in Control of the Executive’s employmentCompany, whichever is greateras adjusted upward, from time to time, pursuant to Section 6 hereof, plus (B) $192,500 or the amount of the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan (but not long-term) cash annual incentive award for the year in which occurs the termination of Covered Termination or if higher, the Executive’s employment occurstarget annual (but not long-term) cash annual incentive award for the year in which occurs the Change in Control of the Company (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as “Annual Cash Compensation”), whichever is greatertimes (C) 2.99. Long-term incentive awards are not considered for this purpose. The Termination Payment shall be paid to the Executive in cash equivalent on the first last business day of the seventh (7th) month following the month in which the Separation from Service occurs, and in such event, the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of occurs the Executive’s termination of employment, compounded quarterlySeparation from Service. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company (or Employer) severance policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Executive to advise the Executive as to matters relating to the computation of benefits due and payable under this Subsection 9(b).
(ii) (A) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company or its affiliates (in the its aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of that is subject to the Code, then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (but not any federal, state or local income taxthe “Code”), or employment tax) on any successor provision, then the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall Payments to be equal made to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at reduced such that the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality value of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined aggregate Total Payments that the Executive is entitled to a Gross-Up Payment, but that receive shall be One Dollar ($1) less than the Total Payments would not be maximum amount which the Executive may receive without becoming subject to the Excise Tax if the Total Payments were reduced tax imposed by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G 4999 of the Code (or any successor provision), ; provided that the Executive and foregoing reduction in the Company, at amount of Total Payments shall not apply if the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized after-tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable value to the Executive (which may be regular outside counsel of the Total Payments prior to reduction in accordance with Subsection 9(b)(ii)(A) is greater than the after-tax value to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Executive if Total Payments to the Safe Harbor Cap, as the case may be. As used are reduced in this Agreement, the term “Baseaccordance with Subsection 9(b)(ii)(A).
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Integrys Energy Group, Inc.)
Termination Payment. (i) The “Termination Payment” shall be an amount equal to (A) $275,000 or the Executive’s annual base salary immediately prior to the termination of the Executive’s employment, whichever is greater, plus (B) $192,500 or the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs, whichever is greater. The Termination Payment shall be paid in a lump sum and shall equal the product of (x) 2.99 and (y) the Employee's combined annual base salary and bonus, averaged over the most recent three (3) year period immediately prior to the Executive Change in cash equivalent on Control. With respect to the first day of the seventh (7th) month following the month year in which the Separation from Service occursEmployee's employment is terminated, the above calculation shall include the full year's base salary and any bonus or incentive compensation to which the Employee would have been entitled had the Employee's employment not been terminated in such event, year. In the event that Employee becomes entitled to the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or Payment, if any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterly. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment will be subject to the tax (the "Excise Tax") imposed by securing other employment or otherwise, nor will such Termination Payment be reduced by reason Section 4999 of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu ofInternal Revenue Code of 1986, and acceptance by as amended (the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement.
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”"Code"), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then the Company Employer shall pay the Executive to Employee, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive Employee, after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) Tax on the Total Payments, Termination Payment and any federal, state and local income tax, employment tax, tax and excise tax Excise Tax upon the payment provided for by this Section 9(c)(ii)paragraph, shall be equal to the Total PaymentsTermination Payment. For purposes of determining the amount whether any of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Termination Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not will be subject to the Excise Tax if and the Total Payments were reduced amount of such Excise Tax, (x) any other payments or benefits received or to be received by an amount that is less than 10% Employee in connection with a Change in Control or the termination of Employee's employment (whether pursuant to the Total Payments that would be treated as “parachute payments” under Section 280G (terms of this agreement or any successor provisionother plan, arrangement or agreement with the Employer, any person whose actions result in a Change in Control or any person having such a relationship with the Employer or such person as to require attribution of stock ownership between the parties under section 318(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Basetreated as
Appears in 1 contract
Samples: Senior Executive Severance Agreement (Serologicals Corp)
Termination Payment. (i) The “Termination Payment” shall be an amount equal to the Annual Cash Compensation times [three (A) $275,000 or 3)] [two (2)]. Subject to Section 9(a)(ii), the Executive’s annual base salary immediately prior to the termination of the Executive’s employment, whichever is greater, plus (B) $192,500 or the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs, whichever is greater. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs, and in such event, the Termination Payment shall be accompanied by a payment of interest calculated using at the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) M&I Xxxxxxxx & Xxxxxx Bank from time to time as the “federal funds its prime or base lending rate”, such rate to be determined on the Termination Date, compounded quarterly. Notwithstanding the foregoing, subject to Section 9(a)(ii), in the event the Executive’s Termination Date is pursuant to Section 2(b), the Termination Payment shall be paid on the sixtieth (60th) calendar day after the date of the Executive’s termination Change in Control of employmentthe Company (as defined without reference to Section 2(b)), compounded quarterlywithout interest. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement.
(ii) Notwithstanding any other provision It is a condition of this Agreement, if any portion payment of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then the Company shall pay that the Executive an additional amount (deliver a full release to the “Gross-Up Payment”) Company, in such that the net amount retained form as is reasonably determined by the Executive after deduction of any excise tax imposed under Section 4999 Company, no later than eight (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal 8) days prior to the Total Payments. For purposes of determining date the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Termination Payment is to be made and state and local income taxes at paid pursuant to Section 9(a)(i). If the highest marginal rate of taxation in Executive does not timely deliver a full release to the state and locality of Company, or if the Executive’s domicile for income tax purposes on Executive delivers such a release but revokes it (to the extent he is able to do so) prior to the date the Gross-Up Termination Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company Executive shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal not be entitled to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Termination Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base
Appears in 1 contract
Samples: Executive Employment and Severance Agreement (Regal Beloit Corp)
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9(b)(ii) hereof, the Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s 's annual base salary salary, at the highest rate as in effect at any time during the 180-day period immediately prior to the termination Change in Control of the Executive’s employmentCompany, whichever is greateras adjusted upward, from time to time, pursuant to Section 6 hereof, plus (B) $192,500 or the Executive’s target amount of the average annual bonus under the Company’s Senior Management Bonus Plan award (determined on an annualized basis for the any bonus award paid for a period of less than one year in and excluding any year for which the termination Executive did not participate in any bonus plan) paid to the Executive with respect to the three complete fiscal years preceding the Termination Date (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as "Annual Cash Compensation"), times (C) the lesser of (1) 2.99 and (2) the number of years or fractional portion thereof remaining in the Employment Period determined as of the Executive’s employment occurs, whichever is greaterTermination Date. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh (7th) month following the month in which the Separation from Service occurs, and in such event, ten business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s 's release of any rights of the Executive to, any other cash severance payments under any Company (or Employer) severance policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Executive to advise the Executive as to matters relating to the computation of benefits due and payable under this Subsection 9(b).
(ii) (A) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company or its affiliates (in the its aggregate, “"Total Payments”"), would constitute an “"excess parachute payment” " that is subject to the tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as defined in Section 280G amended (the "Code"), or any successor provision) of the Code, then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall Payments to be equal made to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at reduced such that the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality value of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined aggregate Total Payments that the Executive is entitled to a Gross-Up Payment, but that receive shall be One Dollar ($1) less than the Total Payments would not be maximum amount which the Executive may receive without becoming subject to the Excise Tax if the Total Payments were reduced tax imposed by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G 4999 of the Code (or any successor provision), ; provided that the Executive and foregoing reduction in the Company, at amount of Total Payments shall not apply if the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National After-Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable Value to the Executive (which may be regular outside counsel of the Total Payments prior to reduction in accordance with Subsection 9(b)(ii)(A) is greater than the After-Tax Value to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Executive if Total Payments to the Safe Harbor Cap, as the case may be. As used are reduced in this Agreement, the term “Baseaccordance with Subsection 9(b)(ii)(A).
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Wisconsin Public Service Corp)
Termination Payment. (i) The “Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s 's annual base salary salary, as in effect immediately prior to the termination Change in Control of the Executive’s employmentCompany, whichever is greateras adjusted upward, from time to time, pursuant to Section 6 hereof, plus (B) $192,500 or the Executive’s target amount of the highest annual bonus under award (determined on an annualized basis for any bonus award paid for a period of less than one year) paid to the Company’s Senior Management Bonus Plan for Executive with respect to the year three complete fiscal years preceding the Termination Date (the aggregate amount set forth in which (A) and (B) hereof shall hereafter be referred to as "Annual Cash Compensation"), times (C) the termination lesser of (1) three and (2) the number of years or fractional portion thereof remaining in the Employment Period determined as of the Termination Date; PROVIDED, HOWEVER, THAT such amount shall not be less than the amount of the Executive’s employment occurs, whichever is greater's Annual Cash Compensation. The Termination Payment and the Gross-Up Payment (as defined below) if any, shall be paid to the Executive in cash equivalent on the first day of the seventh (7th) month following the month in which the Separation from Service occurs, and in such event, ten business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment Termination Payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment (or any other payments or benefits provided under this Agreement) by securing other employment or otherwise, nor will such Termination Payment (or any other payments or benefits provided under this Agreement) be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu ofaddition to the Executive's normal post-termination compensation and benefits, determined under, and acceptance by paid in accordance with, the Executive Company's retirement, insurance and other compensation or benefit plans, programs and arrangements as in effect immediately prior to the Termination Date or, if more favorable to the Executive, as in effect immediately prior to the Change in Control of the Termination Payment Company. Such benefit and compensation plans will include, but shall constitute the Executive’s release of any rights of the Executive not be limited to, any other cash severance payments under any Company severance policy, practice or agreementthe Company's 1993 Stock and Incentive Plan.
(ii) Notwithstanding any other provision of this Agreement(A) Whether or not the Executive becomes entitled to the Termination Payment, if any portion of the Termination Payment payment or benefits received or to be received by the Executive in connection with a Change in Control of the Company or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other payment under this Agreementplan, arrangement or under any other agreement with or plan the Company, any Person whose actions result in a Change in Control of the Company or any Person affiliated with the Company or such Person) (in such payments or benefits excluding the aggregateGross-Up Payment (as hereinafter defined), “being hereinafter referred to as the "Total Payments”") will be subject to any excise tax imposed under section 4999 of the Code (the "Excise Tax"), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then the Company shall pay to the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive Executive, after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) Tax on the Total Payments, Payments and any federal, state and local income tax, and employment tax, taxes and excise tax Excise Tax upon the payment provided for by this Section 9(c)(ii)Gross-Up Payment, shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Giddings & Lewis Inc /Wi/)
Termination Payment. (i) The “Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s annual base salary 's Annual Base Salary (determined as of the time of the Change in Control of the Company or, if higher, immediately prior to the termination date the Notice of the Executive’s employment, whichever Termination is greater, given) plus (B) $192,500 or an amount equal to the greater of the Executive’s 's target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination Termination Date occurs or the bonus the Executive received in the year prior to the Change in Control of the Company (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as "Annual Cash Compensation"), times (C) the number of years or fractional portion thereof remaining in the Employment Period determined as of the Termination Date; provided, however, that such amount shall not be less than the greater of (i) the amount of the Executive’s employment occurs, whichever is greater's Annual Cash Compensation or (ii) the severance benefits to which the Executive would have been entitled under the Company's severance policies and practices in effect immediately prior to the Change in Control of the Company. The Termination Payment shall be paid to the Executive in cash equivalent on the first day of the seventh ten (7th10) month following the month in which the Separation from Service occurs, and in such event, business days after the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the Executive’s termination of employment, compounded quarterlyDate. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s 's release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Executive to advise the Executive as to matters relating to the computation of benefits due and payable under this Subsection 9(b).
(ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company Employer (in the aggregate, “aggregate "Total Payments”"), would constitute an “"excess parachute payment” as defined in Section 280G (or any successor provision) of the Code, then ," the Company shall pay the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and Code, any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(iiSubsection 9(b)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “"excess parachute payment” " and “"parachute payments” " shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “"parachute payments” " shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision) of the Code). Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision)Code, the Executive and the Company, at the Company’s 's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“"National Tax Counsel”") selected by the Company’s 's independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (Ai) the amount of the Base Period Income, (Bii) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base,
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Wisconsin Power & Light Co)
Termination Payment. (i) The “Subject to the limits set forth in Subsection 9(b)(ii) hereof, the Termination Payment” Payment shall be an amount equal to (A) $275,000 or the Executive’s annual base salary salary, at the highest rate as in effect at any time during the 180-day period immediately prior to the termination Change in Control of the Executive’s employmentCompany, whichever is greateras adjusted upward, from time to time, pursuant to Section 6 hereof, plus (B) $192,500 or the Executive’s target amount of the average annual bonus under the Company’s Senior Management Bonus Plan award (determined on an annualized basis for the any bonus award paid for a period of less than one year in and excluding any year for which the termination Executive did not participate in any bonus plan) paid to the Executive with respect to the three complete fiscal years preceding the Termination Date (the aggregate amount set forth in (A) and (B) hereof shall hereafter be referred to as “Annual Cash Compensation”), times (C) the lesser of (1) 2.99 and (2) the number of years or fractional portion thereof remaining in the Employment Period determined as of the Executive’s employment occurs, whichever is greaterTermination Date. Long-term incentive awards are not considered for this purpose. The Termination Payment shall be paid to the Executive in cash equivalent on the first last business day of the seventh (7th) month following the month in which occurs the Executive’s Separation from Service occurs, and in such event, the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time as soon as practicable after, but in no event later than 2½ months following the scheduled payment date in the case of an Executive who is deemed to time as the “federal funds rate”, such rate have a Covered Termination pursuant to be determined on the date of the Executive’s termination of employment, compounded quarterlySection 2(b)). Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company (or Employer) severance policy, practice or agreement; provided that if the Executive has received severance payments under any other Company (or Employer) severance policy, practice or agreement prior to the date of the Termination Payment hereunder, the Termination Payment will be reduced by the amount of the severance payment received by the Executive under such other policy, practice or agreement. The Company shall bear up to $10,000 in the aggregate of fees and expenses of consultants and/or legal or accounting advisors engaged by the Executive to advise the Executive as to matters relating to the computation of benefits due and payable under this Subsection 9(b).
(ii) (A) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company or its affiliates (in the its aggregate, “Total Payments”), would constitute an “excess parachute payment” that is subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as defined in Section 280G amended (the “Code”), or any successor provision) of the Code, then the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the sum of (i) the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code Excise Tax and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) Tax (but not any federal, state or local income tax, tax or employment tax) on the Total Payments, and Payments plus (ii) any federal, state and local income tax, employment tax, tax and excise tax Excise Tax upon the payment provided for by this Section 9(c)(iiSubsection 9(b)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax taxes and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate rates of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base
Appears in 1 contract
Samples: Executive Employment and Severance Agreement (Integrys Energy Group, Inc.)
Termination Payment. (i) The “Termination Payment” Payment shall be an amount equal to three (A3) $275,000 or times the sum of (i) the Executive’s 's annual base salary immediately prior to in effect on the termination Termination Date plus (ii) fifty percent (50%) of the Executive’s employment, whichever is greater, plus (B) $192,500 or maximum bonus the Executive’s target annual bonus Executive would have been entitled to receive under the Company’s Senior Management Bonus Plan 's bonus plan applicable to the Executive for the fiscal year in which the termination of Termination Date takes place. Except as otherwise provided herein, the Executive’s employment occurs, whichever is greater. The Termination Payment shall be paid to the Executive in cash equivalent on no later than ten (10) business days after the first day of the seventh (7th) month following the month in which the Separation from Service occursTermination Date; provided, and in such eventhowever, the Termination Payment shall be accompanied by a payment of interest calculated using paid to the annual rate of interest announced Executive immediately upon receipt by the Federal Reserve Board Company of a Notice of Termination relating to a Discretionary Termination (or regardless of any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the differing effective date of the Executive’s termination of employment, compounded quarterly's employment termination). Such lump sum payment shall not be reduced by any present value or similar factor, and the The Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, It is the intention of the Company and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement.
(ii) Notwithstanding any other provision of this Agreement, if any that no portion of the Termination Payment Payment, Accrued Benefits or any other payment or benefit under this Agreement, or payments to or for the benefit of the Executive under any other agreement with or plan of the Company Company, regardless of whether such payment or benefit was paid or provided for prior to the Covered Termination (in herein all collectively referred to as the aggregate, “"Total Payments”"), would constitute be deemed to be an “"excess parachute payment” " as defined in Section 280G (of the Code. It is agreed that the present value of the Total Payments and any other payments to or for the benefit of the Executive in the nature of compensation, receipt of which are contingent on the change of control of the Company and to which Section 280G of the Code or any successor provisionprovision thereto applies (in the aggregate "Total Benefits") of shall not exceed an amount equal to one dollar less than the Code, then the Company shall pay maximum amount which the Executive an additional amount (may receive without becoming subject to the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax provision (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to "Excise Tax") or which the Executive. For purposes Company may pay without loss of reducing the Total Payments to the Safe Harbor Cap, only amounts payable deduction under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.
(iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision280G(a) of the Code and such “parachute payments” shall be valued as provided thereinor any successor provision thereto. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2280G(d)(4) (of the Code or any successor provisionprovision thereto. Within forty-five (45) of the Code. Promptly days following a Covered Termination or notice by the Company either party to the Executive other of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s 's expense, shall obtain the opinion of such legal counsel (which the opinion of legal counsel need not to be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors ), and reasonably acceptable to certified public accountants as the Executive (which may be regular outside counsel to the Company)choose, which opinion sets forth (Aa) the amount of the Base Period IncomeIncome (as defined below) of the Executive, (Bb) the amount and present value of Total PaymentsBenefits, and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or any other payment determined by such counsel to be includible in the reduction of any Total Payments Benefits, shall be reduced or eliminated as specified by the Executive in writing delivered to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “BaseCompany within thirty (30) days of his receipt of such
Appears in 1 contract
Samples: Key Executive Employment and Severance Agreement (Northland Cranberries Inc /Wi/)
