Parachute Payments Clause Example with 56 Variations from Business Contracts
This page contains Parachute 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.
Parachute Payments. If any payment or benefit Executive would receive from the Company or otherwise in connection with a Change of Control or other similar transaction (a "280G Payment") would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then any such 280G Payment (a "Payment") shall be equal to the Reduced Amount. The "Reduced Amount" shall be either (x) the l...argest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) or by clause (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the reduction shall occur in the manner (the "Reduction Method") that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method"). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A of the Code that would not otherwise be subject to taxes pursuant to Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A of the Code as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are "deferred compensation" within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code. (a) Unless Executive and the Company agree on an alternative accounting firm, the accounting firm engaged by the Company for general tax compliance purposes as of the day prior to the effective date of the change of control transaction triggering the Payment shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change of control transaction, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to Executive and the Company within 15 calendar days after the date on which Executive's right to a 280G Payment becomes reasonably likely to occur (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company. (b) If Executive receives a Payment for which the Reduced Amount was determined pursuant to clause (x) of the first paragraph of this Section and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive shall promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.View More
Variations of a "Parachute Payments" Clause from Business Contracts
Parachute Payments. (a) If any payment or benefit Executive Purchaser would receive pursuant to a Change in Control from the Company or otherwise in connection with a Change of Control or other similar transaction (a "280G Payment") "Payment") would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then any suc...h 280G Payment (a "Payment") shall be equal reduced to the Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) or by clause (y)), amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's Purchaser's receipt, on an after-tax basis, of the greater economic benefit amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a payments or benefits constituting "parachute payments" is necessary so that the Payment is required pursuant to the preceding sentence and equals the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the Amount, reduction shall occur in the manner (the "Reduction Method") following order unless Purchaser elects in writing a different order (provided, however, that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method"). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A of the Code that would not otherwise such election shall be subject to taxes pursuant Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to Section 409A be reduced, such acceleration of vesting shall be cancelled in the reverse order of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition date of taxes pursuant to Section 409A grant of the Code as follows: (A) as Purchaser's stock awards unless Purchaser elects in writing a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit different order for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are "deferred compensation" within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code. (a) Unless Executive and the Company agree on an alternative accounting firm, the cancellation. -7- (b) The accounting firm engaged by the Company for general tax compliance audit purposes as of the day prior to the effective date of the change of control transaction triggering the Payment Change in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change of control transaction, Change in Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. (c) The Company shall use commercially reasonable efforts to cause the accounting firm engaged to make the determinations hereunder to shall provide its calculations, together with detailed supporting documentation, to Executive and the Company and Purchaser within 15 calendar days after the date on which Executive's Purchaser's right to a 280G Payment becomes reasonably likely to occur is triggered (if requested at that time by Executive the Company or the Company) Purchaser) or such other time as requested by Executive the Company or Purchaser. If the Company. (b) If Executive receives accounting firm determines that no Excise Tax is payable with respect to a Payment for which Payment, it shall furnish the Reduced Amount was determined pursuant Company and Purchaser with an opinion reasonably acceptable to clause (x) Purchaser that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the first paragraph of this Section accounting firm made hereunder shall be final, binding and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive shall promptly return to conclusive upon the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence. and Purchaser. View More
Parachute Payments. (a) If any payment or benefit Executive Purchaser would receive pursuant to a Corporate Transaction from the Company or otherwise in connection with a Change of Control or other similar transaction (a "280G Payment") ("Payment") would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then an...y such 280G Payment (a "Payment") shall be equal reduced to the 3. Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) or by clause (y)), amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's Purchaser's receipt, on an after-tax basis, of the greater economic benefit amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a payments or benefits constituting "parachute payments" is necessary so that the Payment is required pursuant to the preceding sentence and equals the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the Amount, reduction shall occur in the manner (the "Reduction Method") following order unless Purchaser elects in writing a different order (provided, however, that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method"). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A of the Code that would not otherwise such election shall be subject to taxes pursuant Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to Section 409A be reduced, such acceleration of vesting shall be cancelled in the reverse order of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition date of taxes pursuant to Section 409A grant of the Code as follows: (A) as Purchaser's stock awards unless Purchaser elects in writing a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit different order for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are "deferred compensation" within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code. (a) Unless Executive and the Company agree on an alternative accounting firm, the cancellation. (b) The accounting firm engaged by the Company for general tax compliance audit purposes as of the day prior to the effective date of the change of control transaction triggering the Payment Corporate Transaction shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change of control transaction, Corporate Transaction, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. (c) The Company shall use commercially reasonable efforts to cause the accounting firm engaged to make the determinations hereunder to shall provide its calculations, together with detailed supporting documentation, to Executive and the Company and Purchaser within 15 fifteen (15) calendar days after the date on which Executive's Purchaser's right to a 280G Payment becomes reasonably likely to occur is triggered (if requested at that time by Executive the Company or the Company) Purchaser) or such other time as requested by Executive the Company or Purchaser. If the Company. (b) If Executive receives accounting firm determines that no Excise Tax is payable with respect to a Payment for which Payment, it shall furnish the Reduced Amount was determined pursuant Company and Purchaser with an opinion reasonably acceptable to clause (x) Purchaser that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the first paragraph of this Section accounting firm made hereunder shall be final, binding and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive shall promptly return to conclusive upon the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence. and Purchaser. View More
Parachute Payments. (a) If any payment or benefit Executive Employee would receive pursuant to a Change of Control from the Company or otherwise in connection with a Change of Control or other similar transaction (a "280G Payment") ("Payment") would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then any suc...h 280G Payment (a "Payment") shall be equal reduced to the Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) 8 DocuSign Envelope ID: 9AC8A669-45E5-4640-99C9-183FAE9E4266 being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) or by clause (y)), amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's Employee's receipt, on an after-tax basis, of the greater economic benefit amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a payments or benefits constituting "parachute payments" is necessary so that the Payment is required pursuant to the preceding sentence and equals the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the Amount, reduction shall occur in the manner (the "Reduction Method") following order unless Employee elects in writing a different order (provided, however, that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method"). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A of the Code that would not otherwise such election shall be subject to taxes pursuant Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to Section 409A be reduced, such acceleration of vesting shall be cancelled in the reverse order of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition date of taxes pursuant to Section 409A grant of the Code as follows: (A) as Employee's stock awards unless Employee elects in writing a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit different order for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are "deferred compensation" within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code. (a) Unless Executive and the Company agree on an alternative accounting firm, the cancellation. (b) The accounting firm engaged by the Company for general tax compliance audit purposes as of the day prior to the effective date of the change Change of control transaction triggering the Payment Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting affecting the change Change of control transaction, Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. (c) The Company shall use commercially reasonable efforts to cause the accounting firm engaged to make the determinations hereunder to shall provide its calculations, together with detailed supporting documentation, to Executive and the Company and Employee within 15 fifteen (15) calendar days after the date on which Executive's Employee's right to a 280G Payment becomes reasonably likely to occur is triggered (if requested at that time by Executive the Company or the Company) Employee) or such other time as requested by Executive the Company or Employee. If the Company. (b) If Executive receives accounting firm determines that no Excise Tax is payable with respect to a Payment for which Payment, it shall furnish the Reduced Amount was determined pursuant Company and Employee with an opinion reasonably acceptable to clause (x) Employee that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the first paragraph of this Section accounting firm made hereunder shall be final, binding and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive shall promptly return to conclusive upon the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence. and Employee. View More
Parachute Payments. (a) If any payment or benefit Executive Purchaser would receive pursuant to a Corporate Transaction from the Company or otherwise in connection with a Change of Control or other similar transaction (a "280G Payment") ("Payment") would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then an...y such 280G Payment (a "Payment") shall be equal reduced to the Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) or by clause (y)), amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's Purchaser's receipt, on an after-tax basis, of the greater economic benefit amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a payments or benefits constituting "parachute payments" is necessary so that the Payment is required pursuant to the preceding sentence and equals the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the Amount, reduction shall occur in the manner (the "Reduction Method") following order unless Purchaser elects in writing a different order (provided, however, that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method"). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A of the Code that would not otherwise such election shall be subject to taxes pursuant Company approval if made on or after the date on which the event that triggers the Payment occurs): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to Section 409A be reduced, such acceleration of vesting shall be cancelled in the reverse order of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition date of taxes pursuant to Section 409A grant of the Code as follows: (A) as Purchaser's stock awards unless Purchaser elects in writing a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit different order for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are "deferred compensation" within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code. (a) Unless Executive and the Company agree on an alternative accounting firm, the cancellation. (b) The accounting firm engaged by the Company for general tax compliance audit purposes as of the day prior to the effective date of the change of control transaction triggering the Payment Corporate Transaction shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change of control transaction, Corporate Transaction, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause If the accounting firm engaged determines that no Excise Tax is payable with respect to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to Executive and a Payment, it shall furnish the Company within 15 calendar days after the date on which Executive's right and Purchaser with an opinion reasonably acceptable to a 280G Payment becomes reasonably likely Purchaser that no Excise Tax will be imposed with respect to occur (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company. (b) If Executive receives a Payment for which the Reduced Amount was determined pursuant to clause (x) Payment. Any good faith determinations of the first paragraph of this Section accounting firm made hereunder shall be final, binding and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive shall promptly return to conclusive upon the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence. and Purchaser. View More
Parachute Payments. If any payment or benefit benefit, Executive would receive from the Company or otherwise in connection with a Change of Control or other similar transaction (a "280G Payment") ("Payment"), would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then any such 280G Payment (a "Payment") shall ...be equal reduced to the Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) or by clause (y)), amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's receipt, on an after-tax basis, of the greater economic benefit amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a payments or benefits constituting "parachute payments" is necessary so that the Payment is required pursuant to the preceding sentence and equals the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the Amount, reduction shall occur in the manner (the "Reduction Method") following order: reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that results acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method"). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion reverse order of the Payment being subject to taxes pursuant to Section 409A date of the Code that would not otherwise be subject to taxes pursuant to Section 409A grant of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, Executive's stock awards. No such reduction shall be modified so as to avoid made in a manner which violates the imposition requirements of taxes pursuant to Section 409A of the Code as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are "deferred compensation" within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code. (a) Unless Executive and the Company agree on an alternative accounting firm, the accounting firm engaged by the Company for general tax compliance purposes as of the day prior to the effective date of the change of control transaction triggering the Payment shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change of control transaction, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to Executive and the Company within 15 calendar days after the date on which Executive's right to a 280G Payment becomes reasonably likely to occur (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company. (b) If Executive receives a Payment for which the Reduced Amount was determined pursuant to clause (x) of the first paragraph of this Section and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive shall promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence. section 409A. View More
Parachute Payments. (a) If any payment or benefit Executive you would receive from the Company or otherwise in connection with a Change of in Control or other similar transaction (a "280G Payment") ("Payment") would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then any such 280G Payment (a "Payment") shall will be equal to the Reduced Amount. The "Reduced Amoun...t" shall will be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) ((x) or by clause (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's your receipt, on an after-tax basis, of the greater economic benefit amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a payments or benefits constituting "parachute payments" is necessary so that the Payment is required pursuant to the preceding sentence and equals the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the Amount, reduction shall will occur in the manner (the "Reduction Method") that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method"). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A of the Code that would not otherwise be subject to taxes pursuant to Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A of the Code as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are "deferred compensation" within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code. (a) Unless Executive and the Company agree on an alternative accounting firm, the you. (b) The independent registered public accounting firm engaged by the Company for general tax compliance audit purposes as of the day prior to the effective date of the change event described in Section 280G(b)(2)(A)(i) of control transaction triggering the Payment shall Code will perform the foregoing calculations. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change of control such Change in Control or similar transaction, the Company shall will appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall will bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. (c) The Company shall use commercially reasonable efforts to cause the independent registered public accounting firm engaged to make the determinations hereunder to will provide its calculations, together with detailed supporting documentation, to Executive and the Company and you within 15 30 calendar days after the date on which Executive's your right to a 280G Payment becomes reasonably likely to occur is triggered (if requested at that time by Executive the Company or the Company) you) or such other time as reasonably requested by Executive the Company or the Company. (b) If Executive receives a Payment for which the Reduced Amount was determined pursuant to clause (x) you. Any good faith determinations of the first paragraph of this Section independent registered public accounting firm made hereunder will be final, binding and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive shall promptly return to conclusive upon the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence. and you. View More
Parachute Payments. (a) If any payment or benefit Executive you would receive from the Company or otherwise in connection with a Change of in Control or other similar transaction (a "280G Payment") ("Payment") would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then any such 280G Payment (a "Payment") shall be equal to the Reduced Amount. The "Reduced Amount" sh...all be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) ((x) or by clause (y)), after taking into account all applicable federal, state state, foreign and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's your receipt, on an after-tax basis, of the greater economic benefit amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a payments or benefits constituting "parachute payments" is necessary so that the 732441 v9/SD Payment is required pursuant to the preceding sentence and equals the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the Amount, reduction shall occur in the manner (the "Reduction Method") that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method"). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A of the Code that would not otherwise be subject to taxes pursuant to Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A of the Code as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are "deferred compensation" within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code. (a) Unless Executive and the Company agree on an alternative accounting firm, the you. (b) The independent registered public accounting firm engaged by the Company for general tax compliance audit purposes as of the day prior to the effective date of the change event described in Section 280G(b)(2)(A)(i) of control transaction triggering the Payment Code shall perform the foregoing calculations. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change of control such Change in Control or similar transaction, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. (c) The Company shall use commercially reasonable efforts to cause the independent registered public accounting firm engaged to make the determinations hereunder to shall provide its calculations, together with detailed supporting documentation, to Executive and the Company and you within 15 thirty (30) calendar days after the date on which Executive's your right to a 280G Payment becomes reasonably likely to occur is triggered (if requested at that time by Executive the Company or the Company) you) or such other time as reasonably requested by Executive the Company or the Company. (b) If Executive receives a Payment for which the Reduced Amount was determined pursuant to clause (x) you. Any good faith determinations of the first paragraph of this Section independent registered public accounting firm made hereunder shall be final, binding and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive shall promptly return to conclusive upon the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence. and you. View More
Parachute Payments. 12.1 If any payment or benefit Executive would receive from the Company pursuant to this Agreement or otherwise in connection with a Change of Control or other similar transaction (a "280G Payment") ("Payment") would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1986, as amended (the "Code"), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then any such 280G Paymen...t (a "Payment") shall will be equal to the Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) ((x) or by clause (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's receipt, on an after-tax basis, receipt of the greater greatest economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the reduction shall occur in the manner (the "Reduction Method") that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method"). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payment being subject to taxes pursuant to Section 409A of the Code that would not otherwise be subject to taxes pursuant to Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A of the Code as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (C) as a third priority, Payments that are "deferred compensation" within the meaning of Section 409A of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A of the Code. (a) Unless Executive and the Company agree on an alternative accounting firm, the 12.2 The independent registered public accounting firm engaged by the Company for general tax compliance audit purposes as of the day prior to the effective date of the change event described in Section 280G(b)(2)(A)(i) of control transaction triggering the Payment Code shall perform the foregoing calculations. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change of control transaction, the such event, Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the independent registered public accounting firm engaged to make the determinations hereunder to shall provide its calculations, together with detailed supporting documentation, to Company and Executive and the Company within 15 thirty (30) calendar days after the date on which Executive's right to a 280G Payment becomes reasonably likely to occur is triggered (if requested at that time by Executive Company or the Company) Executive) or such other time as reasonably requested by Executive Company or the Company. (b) If Executive receives a Payment for which the Reduced Amount was determined pursuant to clause (x) Executive. Any good faith determinations of the first paragraph of independent registered public accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. 12.3 Notwithstanding the above, prior to any reduction in payments and benefits under this Section and 6, at Executive's request the Internal Revenue Service determines thereafter that some portion Company agrees, if permissible under Section 280G of the Payment is Code and applicable law (and subject to any applicable requirements including any requirements that may be applicable to Executive), to solicit a vote of all eligible shareholders of the Company for approval of such amounts such that the compensation will not be subject to the Excise Tax, Executive shall promptly return to the Company a sufficient amount Tax as provided in Q&As 6 and 7 of Section 1.280G--1 of the Payment (after reduction pursuant Treasury Regulations or any superseding provision of such regulations. The Company agrees to clause (x) of the first paragraph of this Section take all reasonable steps, in good faith, to solicit such vote if so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence. request. View More
Parachute Payments. (a) If any payment or benefit Executive Employee would receive from the Company or otherwise in connection with a Change of Control or other similar transaction (a "280G Payment") ("Payment") would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code, Internal Revenue Code of 1988, as amended (the "Code"), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then any such 280G Payment (a "Payment") sha...ll be equal to the Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) ((x) or by clause (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, T. Martin Continuity Agreement -8- and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's receipt, on an after-tax basis, Employee's receipt of the greater greatest economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a Reduced Amount will give rise to the greater after tax benefit, the reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the reduction Payments shall occur in the manner (the "Reduction Method") that results in the greatest economic benefit for Executive. If more following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than one method stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method"). Notwithstanding the foregoing, if the Reduction Method of other benefits paid to Employee. Within any such category of payments and benefits (that is, (a), (b), (c) or the Pro Rata Reduction Method would result in any portion of the Payment being subject (d)), a reduction shall occur first with respect to taxes pursuant to Section 409A of the Code that would not otherwise be subject to taxes pursuant to Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A of the Code as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments amounts that are not contingent on future events; and (C) as a third priority, Payments that are "deferred compensation" within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from Employee's equity awards is to be reduced, such acceleration of vesting shall be canceled, subject to the immediately preceding sentence, in the reverse order of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning date of Section 409A of the Code. (a) Unless Executive and the Company agree on an alternative accounting firm, the grant. (b) The independent registered public accounting firm engaged by the Company for general tax compliance audit purposes as of the day prior to the effective date of the change event described in Section 280G(b)(2)(A)(i) of control transaction triggering the Payment Code shall perform the foregoing calculations. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change of control transaction, such event, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the independent registered public accounting firm engaged to make the determinations hereunder to shall provide its calculations, together with detailed supporting documentation, to Executive and the Company and Employee within 15 thirty (30) calendar days after the date on which Executive's Employee's right to a 280G Payment becomes reasonably likely to occur is triggered (if requested at that time by Executive the Company or the Company) Employee) or such other time as reasonably requested by Executive the Company or the Company. (b) If Executive receives a Payment for which the Reduced Amount was determined pursuant to clause (x) Employee. Any good faith determinations of the first paragraph of this Section independent registered public accounting firm made hereunder shall be final, binding and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive shall promptly return to conclusive upon the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence. and Employee. View More
Parachute Payments. (a) If any payment or benefit Executive Employee would receive from the Company or otherwise in connection with a Change of Control or other similar transaction (a "280G Payment") ("Payment") would (i) constitute a "parachute payment" within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then any such 280G Payment (a "Payment") shall be equal to the Reduced Amount. The "Reduced Amount" ...shall be either (x) the largest portion of the Payment that would result in no portion of -7- the Payment (after reduction) being subject to the Excise Tax Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) ((x) or by clause (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's receipt, on an after-tax basis, Employee's receipt of the greater greatest economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a Reduced Amount will give rise to the greater after tax benefit, the reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the reduction Payments shall occur in the manner (the "Reduction Method") that results in the greatest economic benefit for Executive. If more following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than one method stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the "Pro Rata Reduction Method"). Notwithstanding the foregoing, if the Reduction Method of other benefits paid to Employee. Within any such category of payments and benefits (that is, (a), (b), (c) or the Pro Rata Reduction Method would result in any portion of the Payment being subject (d)), a reduction shall occur first with respect to taxes pursuant to Section 409A of the Code that would not otherwise be subject to taxes pursuant to Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A of the Code as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (B) as a second priority, Payments that are contingent on future events (e.g., being terminated without cause), shall be reduced (or eliminated) before Payments amounts that are not contingent on future events; and (C) as a third priority, Payments that are "deferred compensation" within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from Employee's equity awards is to be reduced, such acceleration of vesting shall be canceled, subject to the immediately preceding sentence, in the reverse order of the Code shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning date of Section 409A of the Code. (a) Unless Executive and the Company agree on an alternative accounting firm, the grant. (b) The independent registered public accounting firm engaged by the Company for general tax compliance audit purposes as of the day prior to the effective date of the change event described in Section 280G(b)(2)(A)(i) of control transaction triggering the Payment Code shall perform the foregoing calculations. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change of control transaction, effectuating such event, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the independent registered public accounting firm engaged to make the determinations hereunder to shall provide its calculations, together with detailed supporting documentation, to Executive and the Company and Employee within 15 thirty (30) calendar days after the date on which Executive's Employee's right to a 280G Payment becomes reasonably likely to occur is triggered (if requested at that time by Executive the Company or the Company) Employee) or such other time as reasonably requested by Executive the Company or the Company. (b) If Executive receives a Payment for which the Reduced Amount was determined pursuant to clause (x) Employee. Any good faith determinations of the first paragraph of this Section independent registered public accounting firm made hereunder shall be final, binding and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive shall promptly return to conclusive upon the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of the first paragraph of this Section so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) in the first paragraph of this Section, Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence. and Employee. View More
