Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the Code, and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's benefits under Section 3 will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excis
...e tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will be made in writing by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5.
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Limitation on Payments.
In (a) Reduction of Severance Benefits. If any payment or benefit that Executive would receive from the
event that Company or any other party whether in connection with the
severance and other benefits provided for provisions in this Agreement or otherwise
payable to Executive (the "Payments") would (i) constitute
a "parachute
payments" payment" within the meaning of Section 280G of the
Code, Code and (ii) but for this
Section 5, would sentence, be subject to the excise tax imposed by Section 49
...99 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 the Payments will be either: (a) either delivered in full, or (b) delivered as to such lesser extent which that would result in no portion of such benefits the Payments being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest amount of benefits, Payments, notwithstanding that all or some portion of such benefits the Payments may be taxable under Section 4999 of subject to the Code. Excise Tax. If a reduction in severance and other benefits constituting "parachute payments" Payments is necessary so that benefits are delivered to a lesser extent, made in accordance with the immediately preceding sentence, the reduction will occur occur, with respect to the Payments considered parachute payments within the meaning of Code Section 280G, in the following order: (A) reduction of cash payments; payments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first cash payment to be reduced); (B) cancellation of Equity Awards equity awards that were granted "contingent on a change in ownership or control" within the meaning of Section 280G of the Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. the equity awards (that is, the most recently granted equity awards will be cancelled first); (C) reduction of the accelerated vesting of equity awards in the reverse order of date of grant of the equity awards (that is, the vesting of the most recently granted equity awards will be cancelled first); and (D) reduction of employee benefits in reverse chronological order (that is, the benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first benefit to be reduced). In no event will the Executive have any discretion with respect to the ordering of Payment reductions. Executive will be solely responsible for the payment reductions. of all personal tax liability that is incurred as a result of the payments and benefits received under this Agreement, and neither the Company nor any parent, subsidiary or other affiliate of the Company have any responsibility, liability or obligation to reimburse, indemnify or hold harmless Executive for any of those payments of personal tax liability. (b) Determination of Excise Tax Liability. Unless the Company and Executive otherwise agree in writing, any determination determinations required under this Section 5 6 will be made in writing by a nationally recognized accounting or valuation firm (the "Firm") selected by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), Company, whose determination determinations will be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 6, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm reasonably may reasonably request in order to make a determination determinations under this Section. Section 6. The Company will bear the costs and make all costs payments required to be made to the Firm may incur for the Firm's services that are rendered in connection with any calculations contemplated by this Section 5. 6. The Company will have no liability to Executive for the determinations of the Firm.
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Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to
Executive Employee (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code and (ii) but for this Section
5, 4, would be subject to the excise tax imposed by Section 4999 of the Code, then
Executive's Employee's severance benefits under Section
3 4(a)(i) will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no p
...ortion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive Employee otherwise agree in writing, any determination required under this Section 5 4 will be made in writing by the Company's independent public accountants immediately prior to BDO Seidman or by a Change of Control or such other person or entity to which the parties mutually agree national "Big Four" accounting firm (the "Firm"), "Accountants"), whose determination will be conclusive and binding upon Executive Employee and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 4, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive Employee will furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 4.
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Limitation on Payments. In the event that the severance and other benefits provided for in this
Agreement letter or otherwise payable to
Executive you (i) constitute "parachute payments" within the meaning of Section 280G of the Code, and (ii) but for this Section
5, 15, would be subject to the excise tax imposed by Section 4999 of the Code, then
Executive's your benefits
under Section 3 will be either:
(a) a) delivered in full, or
(b) Nutanix, Inc. 1740 Technology Drive San Jose, CA 95110 Ph: 408.520.0520 www.nutanix....com b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, 4999 of the Code, results in the receipt by Executive you on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of Equity Awards awards granted "contingent on a change in ownership or control" within (within the meaning Section 280G of Code Section 280G; the Code), (iii) cancellation of accelerated vesting of Equity Awards; and equity awards; (iv) reduction of employee benefits. In the event that acceleration of vesting of Equity Award equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. your equity awards. Unless the Company and Executive you otherwise agree in writing, any determination required under this Section 5 15 will be made in writing by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive you and the Company. For purposes of making the calculations required by this Section 5, 15, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive you will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5. 15.
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Limitation on Payments.
8.1 General. In the event that the
severance payments and
other benefits
(the "Payments") paid or provided
for in to Executive under this Agreement or otherwise
payable to Executive (i) (a) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code ("Section 280G"), and
(ii) (b) but for this Section
5, 8, would be subject to the excise tax imposed by Section 4999 of the
Code, Code ("Section 4999"), then
Executive's benefits under Section 3 will the Payments shall be
eit...her: (a) either (x) delivered in full, or (b) (y) delivered as to such lesser extent which would result in no portion of such benefits the Payments being subject to excise tax under Section 4999 of the Code, 4999, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, the Payments, notwithstanding that all or some portion of such benefits the Payments may be taxable under Section 4999. The provisions of this Section 8 shall apply if, at the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction time of cash payments; cancellation of Equity Awards granted "contingent on a any change in ownership or control" control of the Company (within the meaning of Section 280G), the Company is an entity whose stock is readily tradable on an established securities market (or otherwise), within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. 280G. 8.2 Accountants' Determinations. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will 8 shall be made in writing by the Company's independent public accountants immediately prior to a the Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), "Accountants"), whose determination will shall be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 8, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and Section 4999. of the Code. The Company and Executive will shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. Section 8. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 8. If a reduction in the Payments constituting "parachute payments" as defined in Section 280G is necessary so that benefits are delivered to a lesser extent, reduction shall occur in the following order: (a) reduction of the cash severance payments; (b) cancellation of accelerated vesting of equity awards that do not qualify for special valuation under Q&A 24(c) of the regulations under Section 280G; (c) cancellation of other equity awards; and (d) reduction of continued employee benefits. In the event that the accelerated vesting of equity awards is to be cancelled, such vesting acceleration shall be cancelled in the reverse chronological order of Executive's equity awards' grant dates.9. Restrictive Covenants. Simultaneously with the execution of this Agreement, Executive shall execute the Employee Non-Competition and Confidentiality Agreement attached hereto as Exhibit A (the "Non-Competition and Confidentiality Agreement").
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Limitation on Payments. In the event that
the severance and other benefits provided for in any payment or benefit received or to be received pursuant to this Agreement or otherwise
payable to Executive (the "Payments") (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code and (ii) but for this Section
5, 3, would be subject to the excise tax imposed by Section 4999 of the Code,
any successor provisions, or any comparable federal, state, local or foreign excise tax then
Executive's ben...efits under Section 3 Outside Director's Payments will be either: (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such benefits Payments being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive Outside Director on an after-tax basis, of the greatest amount of benefits, Payments, notwithstanding that all or some portion of such benefits Payments may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive Outside Director otherwise agree in writing, any determination required under this Section 5 3 will be made in writing by an independent firm designated by the Company's independent public accountants Company immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive Outside Director and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 3, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive Outside Director will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5. 3. If a reduction in Payments is necessary so that benefits are delivered to a lesser extent, reduction shall occur in the following order: reduction of cash payments; cancellation of awards granted "contingent on a change in ownership or control" (within the meaning of Code Section 280G); cancellation of accelerated vesting of equity awards; reduction of employee benefits. Within any such category of Payment, a reduction shall occur first with respect to amounts that are not "deferred compensation" within the meaning of Section 409A and then with respect to amounts that are, and to the extent any such payment is to be made over time (e.g., in installments, etc. ), then the payments shall be waived in reverse chronological order.
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Limitation on Payments.
(a) In the event that the
severance post-termination payments and other benefits provided for in
this the Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code and (ii) but for this
Section 5, Paragraph 19, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's
post-termination payments benefits
under Section 3 will be either: (a) delivered in full, or
(b) delivered as to such lesser
...extent which would result in no portion of such post-termination payments or other post-termination benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, 4999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of post-termination payments or benefits, notwithstanding that all or some portion of such post-termination payments or benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting "parachute payments" is necessary so that no portion of such post-termination payments or benefits are delivered is subject to a lesser extent, the excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i) reduction of the post-termination payments under Paragraph 7; (ii) reduction of other cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; payments, if any; (iii) cancellation of accelerated vesting of Equity Awards; equity awards; and (iv) reduction of continued employee benefits. In the event that acceleration of vesting of Equity Award equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive's Equity Awards. equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. In no event will shall the Executive have any discretion with respect to the ordering of payment reductions. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 Paragraph 19 will be made in writing by the Company's an independent public accountants firm immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Paragraph 19, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. determination. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5. Paragraph 19.
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Limitation on Payments.
In (a) Reduction of Severance Benefits. If any payment or benefit that Executive would receive from the
event that Company or any other party whether in connection with the
severance and other benefits provided for provisions in this Agreement or otherwise
payable to Executive (the "Payments") would (i) constitute
a "parachute
payments" payment" within the meaning of Section 280G of the
Code, Code and (ii) but for this
Section 5, would sentence, be subject to the excise tax imposed by Section 49
...99 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 the Payments will be either: (a) either delivered in full, or (b) delivered as to such lesser extent which that would result in no portion of such benefits the Payments being subject to excise tax under Section 4999 of the Code, Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, Excise Tax, results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest amount of benefits, Payments, notwithstanding that all or some portion of such benefits the Payments may be taxable under Section 4999 of subject to the Code. Excise Tax. If a reduction in severance and other benefits constituting "parachute payments" Payments is necessary so that benefits are delivered to a lesser extent, made in accordance with the immediately preceding sentence, the reduction will occur occur, with respect to the Payments considered parachute payments within the meaning of Code Section 280G, in the following order: (A) reduction of cash payments; payments in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first cash payment to be reduced); (B) cancellation of Equity Awards equity awards that were granted "contingent on a change in ownership or control" within the meaning of Section 280G of the Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. the awards (that is, the most recently granted equity awards will be cancelled first); (C) reduction of the accelerated vesting of equity awards in the reverse order of date of grant of the awards (that is, the vesting of the most recently granted equity awards will be cancelled first); and (D) reduction of employee benefits in reverse chronological order (that is, the benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first benefit to be reduced). In no event will the Executive have any discretion with respect to the ordering of Payment reductions. Executive will be solely responsible for the payment reductions. of all personal tax liability that is incurred as a result of the payments and benefits received under this Agreement, and Executive will not be reimbursed, indemnified, or held harmless by the Company for any of those payments of personal tax liability. (b) Determination of Excise Tax Liability. Unless the Company and Executive otherwise agree in writing, any determination determinations required under this Section 5 7 will be made in writing by a nationally recognized accounting or valuation firm (the "Firm") selected by the Company's independent public accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), Company, whose determination determinations will be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 7, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the 6 Code. The Company and Executive will furnish to the Firm such information and documents as the Firm reasonably may reasonably request in order to make a determination determinations under this Section. Section 7. The Company will bear the costs and make all costs payments for the Firm may incur Firm's services in connection with any calculations contemplated by this Section 5. 7. The Company will have no liability to Executive for the determinations of the Firm.
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Limitation on Payments.
(a) In the event that the
severance post-termination payments and other benefits provided for in
this the Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code and (ii) but for this
Section 5, Paragraph 19, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's
post-termination payments benefits
under Section 3 will be either: (a) delivered in full, or
(b) delivered as to such lesser
...extent which would result in no portion of such post-termination payments or other post-termination benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, 4999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of post-termination payments or benefits, notwithstanding that all or some portion of such post-termination payments or benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting "parachute payments" is necessary so that no portion of such post-termination payments or benefits are delivered is subject to a lesser extent, the excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i) reduction of the post-termination payments under Paragraph 7; (ii) reduction of other cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; payments, if any; (iii) cancellation of accelerated vesting of Equity Awards; equity awards; and (iv) reduction of continued employee benefits. In the event that acceleration of vesting of Equity Award equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive's Equity Awards. equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. In no event will shall the Executive have any discretion with respect to the ordering of payment reductions. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 Paragraph 19 will be made in writing by the Company's an independent public accountants firm immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Paragraph 19, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. determination. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5. the Paragraph 19.
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Limitation on Payments.
(a) In the event that the
severance post-termination payments and other benefits provided for in
this the Agreement or otherwise payable to Executive (i) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code and (ii) but for
this Section 5, the Paragraph 19, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's
post-termination payments benefits
under Section 3 will be either: (a) delivered in full, or
(b) delivered as to such les
...ser extent which would result in no portion of such post-termination payments or other post-termination benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, 4999 of the Code, results in the receipt by Executive on an after-tax basis, of the greatest amount of post-termination payments or benefits, notwithstanding that all or some portion of such post-termination payments or benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and other benefits constituting "parachute payments" is necessary so that no portion of such post-termination payments or benefits are delivered is subject to a lesser extent, the excise tax under Section 4999 of the Code, the reduction will shall occur in the following order: (i) reduction of the post-termination payments under Paragraph 7; (ii) reduction of other cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; payments, if any; (iii) cancellation of accelerated vesting of Equity Awards; equity awards; and (iv) reduction of continued employee benefits. In the event that acceleration of vesting of Equity Award equity award compensation is to be reduced, such acceleration of vesting will shall be cancelled in the reverse order of the date of grant of Executive's Equity Awards. equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. In no event will shall the Executive have any discretion with respect to the ordering of payment reductions. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 the Paragraph 19 will be made in writing by the Company's an independent public accountants firm immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), whose determination will be conclusive and binding upon Executive and the Company. For purposes of making the calculations required by this Section 5, the Paragraph 19, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. determination. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 5. the Paragraph 19.
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Limitation on Payments.
1.1General. In the event that the
severance payments and
other benefits
(the "Payments") paid or provided
for in to Executive under this Agreement or otherwise
payable to Executive (i) (a) constitute "parachute payments" within the meaning of Section 280G of the
Code, Code ("Section 280G"), and
(ii) (b) but for this Section
5, 8, would be subject to the excise tax imposed by Section 4999 of the
Code, Code ("Section 4999"), then
Executive's benefits under Section 3 will the Payments shall be
eith...er: (a) either (x) delivered in full, or (b) (y) delivered as to such lesser extent which would result in no portion of such benefits the Payments -11- being subject to excise tax under Section 4999 of the Code, 4999, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits, the Payments, notwithstanding that all or some portion of such benefits the Payments may be taxable under Section 4999. The provisions of this Section 8 shall apply if, at the Code. If a reduction in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction time of cash payments; cancellation of Equity Awards granted "contingent on a any change in ownership or control" control of the Company (within the meaning of Section 280G), the Company is an entity whose stock is readily tradable on an established securities market (or otherwise), within the meaning of Code Section 280G; cancellation of accelerated vesting of Equity Awards; and reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect to the ordering of payment reductions. 280G.1.2Accountants' Determinations. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 will 8 shall be made in writing by the Company's independent public accountants immediately prior to a the Change of Control or such other person or entity to which the parties mutually agree (the "Firm"), "Accountants"), whose determination will shall be conclusive and binding upon Executive and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 8, the Firm Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections Section 280G and Section 4999. of the Code. The Company and Executive will shall furnish to the Firm Accountants such information and documents as the Firm Accountants may reasonably request in order to make a determination under this Section. Section 8. The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 8. If a reduction in the Payments constituting "parachute payments" as defined in Section 280G is necessary so that benefits are delivered to a lesser extent, reduction shall occur in the following order: (a) reduction of the cash severance payments; (b) cancellation of accelerated vesting of equity awards that do not qualify for special valuation under Q&A 24(c) of the regulations under Section 280G; (c) cancellation of other equity awards; and (d) reduction of continued employee benefits. In the event that the accelerated vesting of equity awards is to be cancelled, such vesting acceleration shall be cancelled in the reverse chronological order of Executive's equity awards' grant dates.
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