Limitation on Payments Clause Example with 260 Variations from Business Contracts
This page contains Limitation on Payments clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
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.View More
Variations of a "Limitation on Payments" Clause from Business Contracts
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive ("Payment") would (i) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but for this Section 5, would sentence, be subject to the excise tax imposed by Sec...tion 4999 of the Code, Code (the "Excise Tax"), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive's benefits under Section 3 will be either: (a) delivered after-tax proceeds: (A) payment in full, full of the entire amount of the Payment (a "Full Payment"), or (b) delivered as to such lesser extent which would result in no portion (B) payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the Code, Excise Tax (a "Reduced Payment"), 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 (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment, notwithstanding that all or some portion the Payment may be subject to the Excise Tax. Notwithstanding the above, provided that no securities of the Company are then-publicly traded and subject to Executive waiving Executive's right to the Payment that would otherwise trigger the Excise Tax, the Company will use its good faith efforts to conduct a vote of the Company's stockholders in accordance with the applicable provisions of Section 280G of the Code with such vote giving the stockholders the opportunity to approve the amount of such benefits may be taxable under Section 4999 of Payment that would otherwise trigger the Code. Excise Tax in an effort to exempt such Payment from the Excise Tax if possible. 5 (b) Reduced Payments. If a Reduced Payment is made pursuant to this Section 7, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (1) reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; (2) cancellation of accelerated vesting of Equity Awards; equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefits. other benefits payable to Executive. In the event that acceleration of vesting of Equity Award compensation from Executive's equity awards is to be reduced, such acceleration of vesting will shall be cancelled canceled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect grant. (c) Adviser. All determinations required to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required be made under this Section 5 will 7 shall be made in writing by such adviser as may be selected by the Company's independent public accountants immediately prior to a Change Company, provided, that the adviser's determination shall be made based upon "substantial authority" within the meaning 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 6662 of the Code. The adviser shall provide its determination, together with detailed supporting calculations and documentation, to Executive and the Company and within fifteen (15) business days following the date of termination of Executive's employment, if applicable, or such other time as requested by Executive will furnish (provided, that Executive reasonably believes that any of the Payments may be subject to the Firm Excise Tax) or the Company. All reasonable fees and expenses of the adviser in reaching 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 shall be borne solely by the Firm may incur in connection with any calculations contemplated by this Section 5. Company. View More
Limitation on Payments. In (a) Parachute Payments. Any provision of this Agreement to the event that contrary notwithstanding, if any payment or benefit received or to be received by Executive from the severance and other benefits provided for in Company pursuant to this Agreement or otherwise payable to Executive (i) constitute "parachute payments" within (all such payments and benefits, the meaning of Section 280G of the Code, and (ii) but for this Section 5, "Payments") would be subject (in whole or in part) to the ...excise tax imposed by Section 4999 of the Code, then Executive's benefits under Internal Revenue Code of 1986, as amended (the "Code" and such excise tax, the "Excise Tax"), then, after taking into account any reduction in the Payments provided by reason of Section 3 280G of the Code in another plan, arrangement or agreement, the Payments will be either: (a) delivered in full, or (b) delivered as equal to such lesser extent which the Reduced Amount (as defined below). The "Reduced Amount" will be the largest portion of the Payments that would result in no portion of such benefits the Payments (after reduction) being subject to excise tax under Section 4999 of the Code, whichever of Excise Tax but only if (i) the foregoing amounts, Reduced Amount, after taking into account the all applicable federal, state and local employment taxes and income taxes (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes) on the Reduced Amount (and after taking into account the phase out itemized deductions and personal exemptions attributable to such Payments) is greater than or equal to (ii) the net amount of the Payments without reduction (but after taking into account all applicable federal, state and local employment taxes, income taxes and the excise tax imposed by Section 4999, results in Excise Tax (all computed at the receipt by Executive on an after-tax basis, highest applicable marginal rate, net of the greatest amount of benefits, notwithstanding that all or some portion maximum reduction in federal income taxes which could be obtained from a deduction of such benefits may be taxable under Section 4999 of state and local taxes), and after taking into account the Code. phase out itemized deductions and personal exemptions attributable to such Payments. If a reduction in severance and other the Payments is to be made so that the Payments equals the Reduced Amount, Executive will have no rights to any additional payments and/or benefits constituting "parachute payments" is necessary so that the Payments, and the reduction in payments and/or benefits are delivered to a lesser extent, reduction will occur in the following order: (1) reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; (2) cancellation of accelerated vesting of Equity Awards; equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefits. In other benefits paid to Executive, in each case beginning with payments that would be made last in time. (b) Accounting Firm. The accounting firm engaged by 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 Company for general tax purposes as of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect day prior to the ordering of payment reductions. Unless Change in Control will perform the calculations set forth in Section 6(a). If the firm so engaged by the Company and Executive otherwise agree in writing, any determination required under this Section 5 is serving as accountant or auditor for the acquiring company, the Company will be made in writing by the Company's independent public accountants immediately prior to appoint 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 nationally recognized accounting firm to make a determination under this Section. the determinations required hereunder. The Company will bear all costs expenses with respect to the Firm may incur determinations by such firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company within fifteen (15) days before the consummation of a Change in connection Control (if requested at that time by the Company) or such other time as requested by the Company. If the accounting firm determines that no Excise Tax is payable with any calculations contemplated by this Section 5. respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company with documentation reasonably acceptable to the Company that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder will be final, binding and conclusive upon the Company and Executive. View More
Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Employee would receive pursuant to this Agreement or otherwise payable to Executive (i) ("Payment") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) (b) but for this Section 5, would sentence, be subject to the excise tax imposed... by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 will such Payment shall either be either: (a) (i) delivered in full, or (b) (ii) delivered as to such lesser extent which would result in no portion of such benefits Payment 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 Employee on an after-tax basis, of the greatest amount of benefits, largest payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of the Code. If The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to the Company and Employee within fifteen (15) calendar days after the date on which Employee's right to a Payment is triggered (if requested at that time by the Company or Employee) or such other time as requested by the Company or Employee. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employee. Any reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered pursuant to a lesser extent, reduction this Section 10 will occur in the following order: (1) reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; (2) cancellation of accelerated vesting of Equity Awards; equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefits. In the event that acceleration of vesting of Equity Award compensation is other benefits payable 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. Employee. View More
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement Plan or otherwise payable to Executive a Participant (i) constitute "parachute payments" within the meaning of Section 280G of the Code, Code ("280G Payments"), and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 the 280G Payments will be either: (a) (x) delivered in full, or (b) (y) 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, 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, results in the receipt by Executive Participant 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" the 280G Payments is necessary so that no portion of such benefits are delivered subject to a lesser extent, the Excise Tax, reduction will occur in the following order: reduction of cash payments; (i) cancellation of Equity Awards awards granted "contingent on a change in ownership or control" within (within the meaning of Code Section 280G; 280G); (ii) a pro rata reduction of (A) cash payments that are subject to Section 409A as deferred compensation and (B) cash payments not subject to Section 409A of the Code; (iii) a pro rata reduction of (A) employee benefits that are subject to Section 409A as deferred compensation and (B) employee benefits not subject to Section 409A; and (iv) a pro rata cancellation of (A) accelerated vesting of Equity Awards; equity awards that are subject to Section 409A as deferred compensation and reduction of employee benefits. (B) equity awards not subject to Section 409A. In the event that acceleration of vesting of Equity Award compensation equity awards is to be reduced, cancelled, 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 a Participant's equity awards. A nationally recognized professional services firm selected by the Company, the Company's independent public accountants immediately prior to a Change of Control legal counsel or such other person or entity to which the parties mutually agree (the "Firm"), whose "Firm") will make any determination required under this Section 5. Such determinations will be made in writing by the Firm and any good faith determinations of the Firm will be conclusive and binding upon Executive Participant and the Company. For purposes of making the calculations required by this Section 5, 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 Participant and 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. Section 5. The Company will bear all costs the Firm may incur in connection with any calculations contemplated by this Section 5. -4- 6. Conditions to Receipt of Severance. (a) Release Agreement. As a condition to receiving the Severance Benefits, each Participant will be required to sign and not revoke a separation and release of claims agreement in substantially the form attached to this Plan (the "Release"). In all cases, the Release must become effective and irrevocable no later than the 60th day following the Participant's Qualifying Termination (the "Release Deadline Date"). If the Release does not become effective and irrevocable by the Release Deadline Date, the Participant will forfeit any right to the Severance Benefits. In no event will the Severance Benefits be paid or provided until the Release becomes effective and irrevocable. (b) Confidential Information. A Participant's receipt of Severance Benefits will be subject to the Participant continuing to comply with the terms of any confidentiality, proprietary information and inventions agreement between the Participant and the Company. (c) Non-Disparagement. As a condition to receiving Severance Benefits under this Plan, the Participant agrees that following the Participant's termination, the Participant will not knowingly and materially disparage, libel, slander, or otherwise make any materially derogatory statements regarding the Company or any of its officers or directors. Notwithstanding the foregoing, nothing contained in the Plan will be deemed to restrict the Participant from providing information to any governmental or regulatory agency or body (or in any way limit the content of any such information) to the extent the Participant is required to provide such information pursuant a subpoena or as otherwise required by applicable law or regulation, or in accordance with any governmental investigation or audit relating to the Company. (d) Other Requirements. Severance Benefits under this Plan shall terminate immediately for a Participant if such Participant, at any time, violates any such agreement and/or the provisions of this Section 6. View More
Limitation on Payments. In (a) Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive ("Payment") would (i) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but for this Section 5, would sentence, be subject to the excise tax imposed by... Section 4999 of the Code, Code (the "Excise Tax"), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive's benefits under Section 3 will be either: (a) delivered after-tax proceeds: (A) payment in full, full of the entire amount of the Payment (a "Full Payment"), or (b) delivered as to such lesser extent which would result in no portion (B) payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the Code, Excise Tax (a "Reduced Payment"), 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 (all computed at the highest marginal rate, net of the maximum reduction in -6- federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment, notwithstanding that all or some portion the Payment may be subject to the Excise Tax. Notwithstanding the above, provided that no securities of the Company are then-publicly traded and subject to Executive waiving Executive's right to the Payment that would otherwise trigger the Excise Tax, the Company will use its good faith efforts to conduct a vote of the Company's stockholders in accordance with the applicable provisions of Section 280G of the Code with such vote giving the stockholders the opportunity to approve the amount of such benefits may be taxable under Section 4999 of Payment that would otherwise trigger the Code. Excise Tax in an effort to exempt such Payment from the Excise Tax if possible. (b) If a Reduced Payment is made pursuant to this Section 5, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (1) reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; (2) cancellation of accelerated vesting of Equity Awards; equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefits. other benefits payable to Executive. In the event that acceleration of vesting of Equity Award compensation from Executive's equity awards is to be reduced, such acceleration of vesting will shall be cancelled canceled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect grant. (c) All determinations required to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required be made under this Section 5 will shall be made in writing by such adviser as may be selected by the Company's independent public accountants immediately prior to a Change Company, provided, that the adviser's determination shall be made based upon "substantial authority" within the meaning 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 6662 of the Code. The adviser shall provide its determination, together with detailed supporting calculations and documentation, to Executive and the Company and within fifteen (15) business days following the date of termination of Executive's employment, if applicable, or such other time as requested by Executive will furnish (provided, that Executive reasonably believes that any of the Payments may be subject to the Firm Excise Tax) or the Company. All reasonable fees and expenses of the adviser in reaching 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 shall be borne solely by the Firm may incur in connection with any calculations contemplated by this Section 5. Company. View More
Limitation on Payments. In (a) Notwithstanding anything in this Agreement to the event that the severance and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Executive ("Payment") would (i) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but for this Section 5, would sentence, be subject to the excise tax imposed by... Section 4999 of the Code, Code (the "Excise Tax"), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive's benefits under Section 3 will be either: (a) delivered after-tax proceeds: (A) payment in full, full of the entire amount of the Payment (a "Full Payment"), or (b) delivered as to such lesser extent which would result in no portion (B) payment of such benefits only a part of the Payment so that Executive receives that largest Payment possible without being subject to excise tax under Section 4999 of the Code, Excise Tax (a "Reduced Payment"), 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 (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in the receipt by Executive Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment, notwithstanding that all or some portion of such benefits the Payment may be taxable under Section 4999 of subject to the Code. Excise Tax. 5 (b) If a Reduced Payment is made pursuant to this Section 5, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in severance and other payments and/or benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: (1) reduction of cash payments; cancellation of Equity Awards granted "contingent on a change in ownership or control" within the meaning of Code Section 280G; (2) cancellation of accelerated vesting of Equity Awards; equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of employee benefits. other benefits payable to Executive. In the event that acceleration of vesting of Equity Award compensation from Executive's equity awards is to be reduced, such acceleration of vesting will shall be cancelled canceled in the reverse order of the date of grant of Executive's Equity Awards. In no event will the Executive have any discretion with respect grant. (c) All determinations required to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required be made under this Section 5 will shall be made in writing by such adviser as may be selected by the Company's independent public accountants immediately prior to a Change Company, provided, that the adviser's determination shall be made based upon "substantial authority" within the meaning 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 6662 of the Code. The adviser shall provide its determination, together with detailed supporting calculations and documentation, to Executive and the Company and within fifteen (15) business days following the date of termination of Executive's employment, if applicable, or such other time as requested by Executive will furnish (provided, that Executive reasonably believes that any of the Payments may be subject to the Firm Excise Tax) or the Company. All reasonable fees and expenses of the adviser in reaching 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 shall be borne solely by the Firm may incur in connection with any calculations contemplated by this Section 5. Company. View More
Limitation on Payments. (a) In the event that the severance payments and other benefits provided for in this Agreement or otherwise other payments and benefits payable or provided to Executive you (i) constitute "parachute payments" within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, paragraph 18, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's your payments and benefits under Section 3 this Agreement or other payments or benefits (the "280G Amo...unts") will be either: (a) (i) delivered in full, full; or (b) (ii) delivered as to such lesser extent which that would result in no portion of such benefits the 280G Amounts being subject to the excise tax under Section 4999 of the Code, 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, basis of the greatest amount of benefits, 280G Amounts, notwithstanding that all or some portion of such benefits the 280G Amounts may be taxable under Section 4999 of the Code. If (b) In the event that a reduction of 280G Amounts is made in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, accordance with this paragraph 18, the reduction will occur occur, with respect to the 280G Amounts considered Christina Spade as of August 13, 2019 Page 19 parachute payments within the meaning of Section 280G of the Code, in the following order: (i) reduction of cash payments; payments in reverse chronological order (i.e., 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); (ii) cancellation of Equity Awards equity awards that were granted "contingent 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 280G, in the reverse order of the date of grant of Executive's Equity Awards. the awards (i.e., the most recently granted equity awards will be cancelled first); (iii) reduction of the accelerated vesting of equity awards in the reverse order of date of grant of the awards (i.e., the vesting of the most recently granted equity awards will be cancelled first); and (iv) reduction of employee benefits in reverse chronological order (i.e., 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 you have any discretion with respect to the ordering of payment reductions. (c) Unless you and the Company and Executive otherwise agree in writing, any determination required under this Section 5 paragraph 18 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 will be conclusive and binding upon Executive you and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, paragraph 18, 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. paragraph 18. The Company will bear all costs for payment of the Firm may incur Firm's services in connection with any calculations contemplated by this Section 5. paragraph 18. View More
Limitation on Payments. (a) In the event that the severance payments and other benefits provided for in this Agreement or otherwise other payments and benefits payable or provided to Executive you (i) constitute "parachute payments" within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, paragraph 18, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's your payments and benefits under Section 3 this Agreement or other payments or benefits (the "280G Amo...unts") will be either: (a) (i) delivered in full, full; or (b) (ii) delivered as to such lesser extent which that would result in no portion of such benefits the 280G Amounts being subject to the excise tax under Section 4999 of the Code, Code; Richard M. Jones as of November 19, 2019 Page 19 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, basis of the greatest amount of benefits, 280G Amounts, notwithstanding that all or some portion of such benefits the 280G Amounts may be taxable under Section 4999 of the Code. If (b) In the event that a reduction of 280G Amounts is made in severance and other benefits constituting "parachute payments" is necessary so that benefits are delivered to a lesser extent, accordance with this paragraph 18, the reduction will occur occur, with respect to the 280G Amounts considered parachute payments within the meaning of Section 280G of the Code, in the following order: (i) reduction of cash payments; payments in reverse chronological order (i.e., 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); (ii) cancellation of Equity Awards equity awards that were granted "contingent ‘contingent on a change in ownership or control" 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 280G, in the reverse order of the date of grant of Executive's Equity Awards. the awards (i.e., the most recently granted equity awards will be cancelled first); (iii) reduction of the accelerated vesting of equity awards in the reverse order of date of grant of the awards (i.e., the vesting of the most recently granted equity awards will be cancelled first); and (iv) reduction of employee benefits in reverse chronological order (i.e., 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 you have any discretion with respect to the ordering of payment reductions. (c) Unless you and the Company and Executive otherwise agree in writing, any determination required under this Section 5 paragraph 18 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 will be conclusive and binding upon Executive you and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, paragraph 18, 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. paragraph 18. The Company will bear all costs for payment of the Firm may incur Firm's services in connection with any calculations contemplated by this Section 5. paragraph 18. View More
Limitation on Payments. In 8.1. Reduction of Severance Benefits. If any payment or benefit that a Participant would receive from the event that Company, an Employer or any other party whether in connection with the severance and other benefits provided for provisions in this Agreement Plan or otherwise payable to Executive (i) (the "Payments") would (a) constitute a "parachute payments" payment" within the meaning of Section 280G of the Code, Code and (ii) (b) but for this Section 5, would sentence, be subject to the e...xcise tax imposed by Section 4999 of the Code, Code (the "Excise Tax"), then Executive's benefits under Section 3 the Payments will be either: (a) either (x) delivered in full, full or (b) (y) 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 Participant'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: (i) 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); (ii) 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); (iii) 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 (iv) 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 a Participant have any discretion with respect to the ordering of Payment reductions. The Participant will be solely responsible for the payment reductions. Unless of all personal tax liability that is incurred as a result of the payments and benefits received by such Participant under this Plan, and neither the Company and Executive otherwise agree in writing, Group nor any determination other affiliate of the Company Group will have any responsibility, liability or obligation to reimburse, indemnify or hold harmless any Participant for any payments of personal tax liability. 8.2. Determination of Excise Tax Liability. Any determinations required under this Section 5 8 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 Participant and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 8, 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 Group and Executive Participant 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 8. The Company Group 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. 8. Neither the Company Group nor any other affiliate of the Company Group will have any liability to the Participant for the determinations of the Firm. View More
Limitation on Payments. (a) Code Section 409A. (i) Notwithstanding anything to the contrary in this Agreement, if the Company reasonably determines, after consultation and agreement with Employee (and Employee's legal counsel as applicable) that Section 409A of the Code will result in the imposition of interest and additional tax, Employee shall not be paid any compensation or benefits hereunder upon a separation from service (within the meaning of Section 409A(a)(2)(A)(i) of the Code and the regulations promulgated th...ereunder) until the date which is six (6) months after the date of such separation from service (or, if earlier, the date of death of Employee). Such severance or other benefits otherwise due to Employee on or within the six (6) month period following Employee's termination of employment will accrue during such six (6) month period and will become payable in a lump sum payment on the date six (6) months and one (1) day following the Termination Date. All subsequent payments, if any, will be payable as provided in this Agreement. -3- (ii) The benefits under this Agreement are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to comply with this intention. The Company and the Employee agree to work together in good faith to consider amendments to this Agreement, and to take such further actions, which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to the Employee under Section 409A. (b) Code Section 280G. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive the Employee (i) constitute "parachute payments" within the meaning of Section 280G of the Code, Code and (ii) but for this Section 5, 3(b), would be subject to the excise tax imposed by Section 4999 of the Code, then Executive's the Employee's benefits under Section 3 will 2 of this Agreement shall be either: (a) (i) delivered in full, or (b) (ii) delivered as to such lesser extent which would result in no portion of such severance and other 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 the 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 the Employee otherwise agree in writing, any determination required under this Section 5 will 3(b) 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 the Employee and the Company. Company for all purposes. For purposes of making the calculations required by this Section 5, 3(b), 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 will the Employee 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 3(b). The Company will shall bear all costs the Firm Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. 3(b). View More
