Termination Upon Change of Control. (a) If, during the period commencing 120 days prior to a Change of Control and ending on the first anniversary of a Change of Control, Employee’s employment shall have been terminated by the Corporation (other than for Cause) or by Employee for Good Reason or if within 30 days following a Change of Control Employee shall terminate his employment with or without Good Reason: (i) all unvested options to acquire stock of the Corporation held by Employee shall vest on the date of termination; (ii) the Corporation shall make a lump sum cash payment to Employee within ten (10) days of the date of termination in an amount equal to (i) the amount of compensation that is accrued and unpaid through the date of termination pursuant to Section 4 of this Agreement and (ii) an amount equal to the product of (A) the number of years remaining in the Term of this Agreement (but not less than 5) and (B) the sum of (w) the Base Salary for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31, 2002, if greater), (x) the amount of the Annual Bonus earned pursuant to Section 4.3 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ended on December 31, 2002, if greater), (y) the non-accountable expense allowance pursuant to Section 4.6 for the 12-month period ended on the preceding December 31 and (z) the amount of the New Business Bonus earned pursuant to Section 4.10 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31 during this Agreement in which the Employee received the greatest New Business Bonus, if greater). (b) (i) In the event that any payment (or portion thereof) payable to Employee (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Corporation) is determined to be subject to an excise tax under Section 4999 of the Code (an “Excise Tax”), the Corporation shall pay to Employee an additional amount (the “Gross Up Payment”) which shall be equal to the sum of (1) the amount of the Excise Tax, plus (2) the amount of any interest, penalties or additions to tax which are imposed in connection with the imposition or collection of the Excise Tax, plus (3) the amount of all Federal, State or local income, excise or other taxes imposed on Employee by reason of the payments described in clause (1), clause (2) and this clause (3). For purposes of computing the Gross Up Payment, Employee shall be deemed to be subject to tax at the highest marginal rate under all applicable tax laws for the year in which the Gross Up Payment is made.
Appears in 3 contracts
Samples: Employment Agreement (Steven Madden, Ltd.), Employment Agreement (Steven Madden, Ltd.), Employment Agreement (Steven Madden, Ltd.)
Termination Upon Change of Control. (a) If, during the period commencing 120 days prior to a Change of Control and ending on the first anniversary of a Change of Control, Employee’s employment shall have been terminated by the Corporation (other than for Cause) or by Employee for Good Reason or if within 30 days following a Change of Control Employee shall terminate his employment with or without Good Reason:
(i) all unvested options to acquire stock of the Corporation held by Employee shall vest on the date of termination;
(ii) the Corporation shall make a lump sum cash payment to Employee within ten (10) days of the date of termination in an amount equal to (i) the amount of compensation that is accrued and unpaid through the date of termination pursuant to Section 4 of this Agreement and (ii) an amount equal to the product of (A) the number of years remaining in the Term of this Agreement (but not less than 5) and (B) the sum of (w) the Base Salary for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31, 2002, if greater), (x) the amount of the Annual Bonus earned pursuant to Section 4.3 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ended on December 31, 2002, if greater), (y) the non-accountable expense allowance pursuant to Section 4.6 for the 12-month period ended on the preceding December 31 and (z) the amount of the New Business Bonus earned pursuant to Section 4.10 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31 during this Agreement in which the Employee received the greatest New Business Bonus, if greater).
(b) (i) In the event that any payment (or portion thereof) payable to Employee (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Corporation) is determined to be subject to an excise tax under Section 4999 of the Code (an “Excise Tax”), the Corporation shall pay to Employee an additional amount (the “Gross Up Payment”) which Payment”)which shall be equal to the sum of (1) the amount of the Excise Tax, plus (2) the amount of any interest, penalties or additions to tax which are imposed in connection with the imposition or collection of the Excise Tax, plus (3) the amount of all Federal, State or local income, excise or other taxes imposed on Employee by reason of the payments described in clause (1), clause (2) and this clause (3). For purposes of computing the Gross Up Payment, Employee shall be deemed to be subject to tax at the highest marginal rate under all applicable tax laws for the year in which the Gross Up Payment is made.
(ii) All computations under this Section 5.5(b) shall be initially made by the Corporation and the Corporation shall provide written notice thereof to Employee in sufficient time to timely file all applicable tax returns. Upon Employee’s request, the Corporation shall provide Employee with sufficient data to enable Employee or his representative to independently compute the Gross Up Payment. If Employee gives written notice to the Corporation of any objection to the Corporation’s initial computation of the Gross Up Payment within 60 days of Employee’s receipt of written notice thereof, the dispute shall be resolved by tax counsel selected by the independent auditors of the Corporation. The Corporation shall pay all fees and expenses of such tax counsel. Pending resolution by tax counsel, the Corporation shall pay Employee the Gross Up Payment determined by it in good faith; if the dispute is resolved in favor of Employee, the Corporation shall make such additional payment as may be required within 60 days after tax counsel’s determination.
(iii) The determination by such tax counsel shall be conclusive and binding upon all parties, other than the Internal Revenue Service, a court of competent jurisdiction, or another duly empowered government agency (a “Tax Authority”). In the event that a Tax Authority finally determines that an additional Excise Tax is owed by Employee, the Corporation shall promptly make an additional Gross Up Payment, determined as provided herein, with respect to such additional Excise Tax. If the Excise Tax paid by Employee is finally determined by a Tax Authority to exceed the amount required to have been paid, then Employee shall promptly repay any excess Gross Up Payment to the Corporation.
Appears in 2 contracts
Samples: Employment Agreement (Madden Steven), Employment Agreement (Steven Madden, Ltd.)
Termination Upon Change of Control. (a) IfIn the event Executive terminates his employment under this Agreement for Good Reason, during or in the period commencing 120 days prior event Executive’s employment is terminated without Cause (which termination shall be effective as of the date specified by the Company in written notice to Executive) other than due to death or disability, in either case within 12 months after a Change of in Control (as hereinafter defined), the Executive shall be entitled to receive, and ending on the first anniversary of a Change of Control, Employee’s employment his sole remedies under this Agreement shall have been terminated by the Corporation (other than for Cause) or by Employee for Good Reason or if within 30 days following a Change of Control Employee shall terminate his employment with or without Good Reasonbe:
(i) all unvested options to acquire stock of the Corporation held by Employee shall vest on any earned and unpaid Salary accrued through the date of termination, payable in a lump sum not later than 15 days following Executive’s termination of employment;
(ii) Salary, at the Corporation shall make a lump sum cash payment to Employee within ten (10) days of annualized rate in effect on the date of termination of Executive’s employment (or, in an amount equal the event a reduction in Salary after a Change in Control is a basis for termination for Good Reason, then the Salary in effect immediately prior to such reduction), for a period of 12 months following such termination, payable in a lump sum not later than 15 days following termination of employment;
(iiii) compensation for any unused personal holidays and unused vacation days accrued in the amount of compensation that is accrued and unpaid fiscal year in which termination occurs through the date of termination pursuant to Section 4 termination, payable as in clause (i) of this Agreement and Section 7;
(iiiv) an amount equal to the product of (A) the number of years remaining except in the case of the Company giving notice of non-renewal at the end of the Term of this Agreement (but not less than 5) and (B) the sum of (w) the Base Salary for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31, 2002, if greaterany renewal thereof), (x) the ratable amount of the Annual Bonus earned pursuant to Section 4.3 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ended on December 31, 2002, if greater), (y) the non-accountable expense allowance pursuant to Section 4.6 for the 12-month period ended on the preceding December 31 and (z) the amount of the New Business Bonus earned pursuant to Section 4.10 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31 during this Agreement in which the Employee received the greatest New Business Bonus, if greaterany, to which Executive would otherwise have been entitled in the current fiscal year but for termination under this Section, payable at the time specified in Section 3(b);
(v) any unpaid benefits accrued through the day immediately prior to the date of termination that may be due the Executive under any employee benefit plans or programs of the Company, payable in accordance with the terms of such plans or programs, together with any documented, unreimbursed business expenses, payable in accordance with Company policies; and
(vi) immediate vesting and elimination of all restrictions on any restricted share grants or deferred stock awards outstanding on the date of termination of employment; and
(vii) immediate vesting of all outstanding stock options on the date of termination of employment and the right to exercise such stock options as provided in any stock option award agreement to which Executive is a party.
(b) A “Change of Control” shall be deemed to have occurred if:
(i) In Any Person (as hereinafter defined, other than the event that Company, any payment (or portion thereof) payable to Employee (whether pursuant to employee benefit plan of the terms of this Agreement Company, or any company owned directly or indirectly by the shareholders of the Company immediately prior to such occurrence) becomes the Beneficial Owner (as hereinafter defined), directly or indirectly, of securities of the Company or any Subsidiary (as hereinafter defined) representing 50% or more of the combined voting power of the Company’s or such subsidiary’s then outstanding securities;
(ii) during any period of two consecutive years or shorter period, individuals who at the beginning of such period constitute the Board, and any new director (other plan, arrangement or than a director designated by a person who has entered into an agreement with the Corporation) is determined Company to be subject to an excise tax under Section 4999 of the Code (an “Excise Tax”), the Corporation shall pay to Employee an additional amount (the “Gross Up Payment”) which shall be equal to the sum of (1) the amount of the Excise Tax, plus (2) the amount of any interest, penalties or additions to tax which are imposed in connection with the imposition or collection of the Excise Tax, plus (3) the amount of all Federal, State or local income, excise or other taxes imposed on Employee by reason of the payments effect a transaction described in clause (1i), clause (2iii) and or (iv) of this clause paragraph (3b)) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two-year period or whose election or nomination for election was previously so approved but excluding for this purpose any such new director whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of an individual, corporation, partnership, group, associate, or other entity or Person other than the Board, cease for any reason to constitute at least a majority of the Board;
(iii) the Company enters into any consolidation, merger, or other business combination with or into any other corporation or other entity or person, or any other corporate reorganization, whereby the shareholders of the Company immediately prior to such consolidation, merger, business combination, or reorganization own less than 50% of the voting power of the surviving entity immediately after such consolidation, merger, business combination, or reorganization;
(iv) the consummation of a plan or agreement for the sale or disposition of all or substantially all of the consolidated assets of the Company (other than such sale or disposition immediately after which such assets will be owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of common stock of the Company immediately prior to such sale or disposition), in which case the Board shall determine the effective date of the Change in Control resulting from such transaction; or
(v) the occurrence of any other event that the Board determines, in its discretion, would materially alter the structure of the Company or its ownership. For purposes of computing this definition, the Gross Up Payment, Employee shall be deemed to be subject to tax at the highest marginal rate under all applicable tax laws for the year in which the Gross Up Payment is made.term:
Appears in 2 contracts
Samples: Employment Agreement (Forward Industries Inc), Employment Agreement (Forward Industries Inc)
Termination Upon Change of Control. (a) IfIn the event Executive terminates his employment under this Agreement for Good Reason, during or in the period commencing 120 days prior event Executive’s employment is terminated without Cause (which termination shall be effective as of the date specified by the Company in written notice to Executive) other than due to death or disability, in either case within 12 months after a Change of in Control (as hereinafter defined), the Executive shall be entitled to receive, and ending on the first anniversary of a Change of Control, Employee’s employment his sole remedies under this Agreement shall have been terminated by the Corporation (other than for Cause) or by Employee for Good Reason or if within 30 days following a Change of Control Employee shall terminate his employment with or without Good Reasonbe:
(i) all unvested options to acquire stock of the Corporation held by Employee shall vest on any earned and unpaid Salary accrued through the date of termination, payable in a lump sum not later than 15 days following Executive’s termination of employment;
(ii) Salary, at the Corporation shall make a lump sum cash payment to Employee within ten (10) days of annualized rate in effect on the date of termination of Executive’s employment (or, in an amount equal the event a reduction in Salary after a Change in Control is a basis for termination for Good Reason, then the Salary in effect immediately prior to such reduction), for a period of 12 months following such termination, payable in a lump sum not later than 15 days following termination of employment;
(iiii) compensation for any unused personal holidays and unused vacation days accrued in the amount of compensation that is accrued and unpaid fiscal year in which termination occurs through the date of termination pursuant to Section 4 termination, payable as in clause (i) of this Agreement and Section 8;
(iiiv) an amount equal to the product of (A) the number of years remaining except in the case of the Company giving notice of non-renewal at the end of the Term of this Agreement (but not less than 5) and (B) the sum of (w) the Base Salary for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31, 2002, if greaterany renewal thereof), (x) the ratable amount of the Annual Bonus earned pursuant to Section 4.3 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ended on December 31, 2002, if greater), (y) the non-accountable expense allowance pursuant to Section 4.6 for the 12-month period ended on the preceding December 31 and (z) the amount of the New Business Bonus earned pursuant to Section 4.10 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31 during this Agreement in which the Employee received the greatest New Business Bonus, if greaterany, to which Executive would otherwise have been entitled in the current fiscal year but for termination under this Section, payable at the time specified in Section 4(b);
(v) any unpaid benefits accrued through the day immediately prior to the date of termination that may be due the Executive under any employee benefit plans or programs of the Company, payable in accordance with the terms of such plans or programs, together with any documented, unreimbursed business expenses, payable in accordance with Company policies; and
(vi) immediate vesting and elimination of all restrictions on any restricted share grants or deferred stock awards outstanding on the date of termination of employment; and
(vii) immediate vesting of all outstanding stock options on the date of termination of employment and the right to exercise such stock options as provided in any stock option award agreement to which Executive is a party.
(b) A “Change of Control” shall be deemed to have occurred if:
(i) In Any Person (as hereinafter defined, other than the event that Company, any payment (or portion thereof) payable to Employee (whether pursuant to employee benefit plan of the terms of this Agreement Company, or any company owned directly or indirectly by the shareholders of the Company immediately prior to such occurrence) becomes the Beneficial Owner (as hereinafter defined), directly or indirectly, of securities of the Company or any Subsidiary (as hereinafter defined) representing 50% or more of the combined voting power of the Company’s or such subsidiary’s then outstanding securities;
(ii) during any period of two consecutive years or shorter period, individuals who at the beginning of such period constitute the Board, and any new director (other plan, arrangement or than a director designated by a person who has entered into an agreement with the Corporation) is determined Company to be subject to an excise tax under Section 4999 of the Code (an “Excise Tax”), the Corporation shall pay to Employee an additional amount (the “Gross Up Payment”) which shall be equal to the sum of (1) the amount of the Excise Tax, plus (2) the amount of any interest, penalties or additions to tax which are imposed in connection with the imposition or collection of the Excise Tax, plus (3) the amount of all Federal, State or local income, excise or other taxes imposed on Employee by reason of the payments effect a transaction described in clause (1i), clause (2iii) and or (iv) of this clause paragraph (3b)) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two-year period or whose election or nomination for election was previously so approved but excluding for this purpose any such new director whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of an individual, corporation, partnership, group, associate, or other entity or Person other than the Board, cease for any reason to constitute at least a majority of the Board;
(iii) the Company enters into any consolidation, merger, or other business combination with or into any other corporation or other entity or person, or any other corporate reorganization, whereby the shareholders of the Company immediately prior to such consolidation, merger, business combination, or reorganization own less than 50% of the voting power of the surviving entity immediately after such consolidation, merger, business combination, or reorganization;
(iv) the consummation of a plan or agreement for the sale or disposition of all or substantially all of the consolidated assets of the Company (other than such sale or disposition immediately after which such assets will be owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of common stock of the Company immediately prior to such sale or disposition), in which case the Board shall determine the effective date of the Change in Control resulting from such transaction; or
(v) the occurrence of any other event that the Board determines, in its discretion, would materially alter the structure of the Company or its ownership. For purposes of computing this definition, the Gross Up Payment, Employee shall be deemed to be subject to tax at the highest marginal rate under all applicable tax laws for the year in which the Gross Up Payment is made.term:
Appears in 2 contracts
Samples: Employment Agreement (Forward Industries Inc), Employment Agreement (Forward Industries Inc)
Termination Upon Change of Control. (a) If, during the period commencing 120 days prior to a Change of Control and ending on the first anniversary of Upon a Change of Control, as defined in Section 13.1 of the Plan, if, pursuant to Section 3(b)(4), (i) the Company or its successor elects not to continue the Employee’s employment shall have been terminated by as of the Corporation date of the Change of Control, (ii) the Company or its successor terminates the Employee’s employment any time within 12 months following the date of the Change of Control for any reason other than Cause pursuant to Section 3(b)(i), or (iii) the Employee voluntarily terminates his employment as a result of the Company’s or its successor’s substantial reduction in the Employee’s duties and responsibilities related to the Company’s business or assets (recognizing that the Employee’s actual title and reporting responsibilities may be different, as a result of working for Cause) or by Employee for Good Reason or if within 30 days following a larger organization after a Change of Control Control, but his title and responsibilities shall not be less subordinate than the senior executive officer of a surviving company’s subsidiary or division whose primary business is substantially comprised of the business of the Company), then the Employee shall terminate be paid (a) his employment then current Salary for a period of 6 months from the date that notice of termination is delivered by the Company pursuant to Section 3(b)(4) in accordance with or without Good Reason:
the Company’s standard payroll practices, (ib) all unvested options benefits payable to acquire stock the Employee pursuant to the terms and conditions of any benefit plan in which the Corporation held by Employee shall vest participated during the term of his employment, the right to which had vested on the date of termination;
his termination under the terms and conditions of such plans, and (iic) the Corporation any unpaid expense reimbursement, which unpaid expenses shall make a be paid in one lump sum cash payment to Employee within ten (10) 10 business days of the date Termination Date. In addition, the vesting of termination in an amount equal any stock options or other incentive awards awarded under the Plan shall immediately vest if the acquiring entity or successor to (i) the amount of compensation that Company does not assume such stock options or incentive awards or replace them with substantially equivalent stock options or incentive awards, or if so assumed or replaced, the Employee’s employment is accrued and unpaid through the date of termination subsequently terminated pursuant to this Section 4 of this Agreement and (ii4(c)(ii) an amount equal or 4(c)(iii). The Company or its successor shall only be obligated to make the product of (A) the number of years remaining in the Term of this Agreement (but not less than 5) and (B) the sum of (w) the Base Salary for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31, 2002, foregoing payment if greater), (x) the amount of the Annual Bonus earned pursuant to Section 4.3 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ended on December 31, 2002, if greater), (y) the non-accountable expense allowance pursuant to Section 4.6 for the 12-month period ended on the preceding December 31 and (z) the amount of the New Business Bonus earned pursuant to Section 4.10 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31 during this Agreement in which the Employee received the greatest New Business Bonus, if greater).
(b) (i) In the event that any payment (or portion thereof) payable to Employee (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Corporation) is determined to be subject to an excise tax under Section 4999 of the Code (an “Excise Tax”), the Corporation shall pay to Employee an additional amount (the “Gross Up Payment”) which shall be equal to the sum of (1) has returned all Company property in the amount of the Excise TaxEmployee’s possession, plus (2) the amount of any interest, penalties or additions to tax which are imposed in connection with the imposition or collection has resigned as a member of the Excise TaxBoard of Directors of the Company and all of its subsidiaries (to the extent applicable), plus and (3) the amount of all Federal, State or local income, excise or other taxes imposed on Employee by reason of the payments described signs (and does not revoke) a general release in clause (1), clause (2) and this clause (3). For purposes of computing the Gross Up Payment, Employee shall be deemed a form to be subject to tax at provided by the highest marginal rate under all applicable tax laws for the year in which the Gross Up Payment is madeCompany.
Appears in 1 contract
Termination Upon Change of Control. (a) If, during the period commencing 120 days prior to a Change of Control and ending on the first anniversary of a Change of Control, Employee’s 's employment shall have been terminated by the Corporation (other than for Cause) or by Employee for Good Reason or if within 30 days following a Change of Control Employee shall terminate his employment with or without Good Reason:
(i) all unvested options to acquire stock of the Corporation held by Employee shall vest on the date of termination;
(ii) the Corporation shall make a lump sum cash payment to Employee within ten (10) days of the date of termination in an amount equal to (i) the amount of compensation that is accrued and unpaid through the date of termination pursuant to Section 4 of this Agreement and (ii) an amount equal to the product of (A) the number of years remaining in the Term of this Agreement (but not less than 5) and (B) the sum of (w) the Base Salary for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31, 2002, if greater), (x) the amount of the Annual Bonus earned pursuant to Section 4.3 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ended on December 31, 2002, if greater), (y) the non-accountable expense allowance pursuant to Section 4.6 for the 12-month period ended on the preceding December 31 and (z) the amount of the New Business Bonus earned pursuant to Section 4.10 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31 during this Agreement in which the Employee received the greatest New Business Bonus, if greater).
(b) (i) In the event that any payment (or portion thereof) payable to Employee (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Corporation) is determined to be subject to an excise tax under Section 4999 of the Code (an “"Excise Tax”"), the Corporation shall pay to Employee an additional amount (the “"Gross Up Payment”") which shall be equal to the sum of (1) the amount of the Excise Tax, plus (2) the amount of any interest, penalties or additions to tax which are imposed in connection with the imposition or collection of the Excise Tax, plus (3) the amount of all Federal, State or local income, excise or other taxes imposed on Employee by reason of the payments described in clause (1), clause (2) and this clause (3). For purposes of computing the Gross Up Payment, Employee shall be deemed to be subject to tax at the highest marginal rate under all applicable tax laws for the year in which the Gross Up Payment is made.
(ii) All computations under this Section 5.5(b) shall be initially made by the Corporation and the Corporation shall provide written notice thereof to Employee in sufficient time to timely file all applicable tax returns. Upon Employee's request, the Corporation shall provide Employee with sufficient data to enable Employee or his representative to independently compute the Gross Up Payment. If Employee gives written notice to the Corporation of any objection to the Corporation's initial computation of the Gross Up Payment within 60 days of Employee's receipt of written notice thereof, the dispute shall be resolved by tax counsel selected by the independent auditors of the Corporation. The Corporation shall pay all fees and expenses of such tax counsel. Pending resolution by tax counsel, the Corporation shall pay Employee the Gross Up Payment determined by it in good faith; if the dispute is resolved in favor of Employee, the Corporation shall make such additional payment as may be required within 60 days after tax counsel's determination.
(iii) The determination by such tax counsel shall be conclusive and binding upon all parties, other than the Internal Revenue Service, a court of competent jurisdiction, or another duly empowered government agency (a "Tax Authority"). In the event that a Tax Authority finally determines that an additional Excise Tax is owed by Employee, the Corporation shall promptly make an additional Gross Up Payment, determined as provided herein, with respect to such additional Excise Tax. If the Excise Tax paid by Employee is finally determined by a Tax Authority to exceed the amount required to have been paid, then Employee shall promptly repay any excess Gross Up Payment to the Corporation.
Appears in 1 contract
Termination Upon Change of Control. (a) If, during the period commencing 120 days prior to a Change of Control and ending on the first anniversary of a Change of Control, Employee’s 's employment shall have been terminated by the Corporation (other than for Cause) or by Employee for Good Reason or if within 30 days following a Change of Control Employee shall terminate his employment with or without Good Reason:
(i) all unvested options to acquire stock of the Corporation held by Employee shall vest on the date of termination;
(ii) the Corporation shall make a lump sum cash payment to Employee within ten (10) days of the date of termination in an amount equal to (i) the amount of compensation that is accrued and unpaid through the date of termination pursuant to Section 4 of this Agreement and (ii) an amount equal to the product of (A) the number of years remaining in the Term of this Agreement (but not less than 5) and (B) the sum of (w) the Base Salary for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31, 2002, if greater), (x) the amount of the Annual Bonus earned pursuant to Section 4.3 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ended on December 31, 2002, if greater), (y) the non-accountable expense allowance pursuant to Section 4.6 for the 12-month period ended on the preceding December 31 and (z) the amount of the New Business Bonus earned pursuant to Section 4.10 (paid or accrued or which should have been paid or accrued) for the 12-month period ended on the preceding December 31 (or for the 12-month period ending on December 31 during this Agreement in which the Employee received the greatest New Business Bonus, if greater).
(b) (i) In the event that any payment (or portion thereof) payable to Employee (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Corporation) is determined to be subject to an excise tax under Section 4999 of the Code (an “"Excise Tax”"), the Corporation shall pay to Employee an additional amount (the “"Gross Up Payment”) which Payment")which shall be equal to the sum of (1) the amount of the Excise Tax, plus (2) the 2)the amount of any interest, penalties or additions to tax which are imposed in connection with the imposition or collection of the Excise Tax, plus (3) the amount of all Federal, State or local income, excise or other taxes imposed on Employee by reason of the payments described in clause (1), clause (2) and this clause (3). For purposes of computing the Gross Up Payment, Employee shall be deemed to be subject to tax at the highest marginal rate under all applicable tax laws for the year in which the Gross Up Payment is made.
Appears in 1 contract
