Grouped Into 7 Collections of Similar Clauses From Business Contracts
This page contains Section 280G of the Code clauses in business contracts and legal agreements. We have organized these clauses into groups of similarly worded clauses.
Section 280G of the Code. Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Executive or for Executive's benefit pursuant to the terms of this Agreement or otherwise (the "Covered Payments") constitute parachute payments (the "Parachute Payments") within the meaning of Section 280G of the Code and would, but for this Section 20 would be subject to the excise ta...x imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the "Excise Tax"), then prior to making the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to the Executive of the Covered Payments after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the "Reduced Amount"). "Net Benefit" shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. (a) Any such reduction shall be made in accordance with Section 409A of the Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any determination required under this Section 20 shall be made in writing in good faith by the accounting firm that was the Company's independent auditor immediately before the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by the Company that is reasonably acceptable to the Executive (the "Accountants"). The Company and the Executive shall provide the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 20. For purposes of making the calculations and determinations required by this Section 20, the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Accountants' determinations shall be final and binding on the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accountants in connection with the calculations required by this Section 20. (c) It is possible that after the determinations and selections made pursuant to this Section 20 the Executive will receive Covered Payments that are in the aggregate more than the amount provided under this Section 20 ("Overpayment") or less than the amount provided under this Section 20 ("Underpayment"). (i) In the event that: (A) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountants believe has a high probability of success, that an Overpayment has been made or (B) it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then the Executive shall pay any such Overpayment to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive's receipt of the Overpayment until the date of repayment. (ii) In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would have otherwise been paid to the Executive until the payment date.View More
Section 280G of the Code. Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if any of the payments or benefits provided or to be provided by the Company or its affiliates to Executive or for Executive's benefit pursuant to the terms of this Agreement or otherwise (the "Covered Payments") constitute parachute payments (the "Parachute Payments") within the meaning of Section 280G of the Code and would, but for this Section 20 would be subject to the excise ta...x imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the "Excise Tax"), then prior to making the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to the Executive of the Covered Payments after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the "Reduced Amount"). "Net Benefit" shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. (a) Any such reduction shall be made in accordance with Section 409A of the Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any determination required under this Section 20 shall be made in writing in good faith by the accounting firm that was the Company's independent auditor immediately before the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by the Company that is reasonably acceptable to the Executive (the "Accountants"). The Company and the Executive shall provide the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 20. For purposes of making the calculations and determinations required by this Section 20, the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Accountants' determinations shall be final and binding on the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accountants in connection with the calculations required by this Section 20. (c) It 21. (c)It is possible that after the determinations and selections made pursuant to this Section 20 the 21 Executive will receive Covered Payments that are in the aggregate more than the amount intended or required to be provided under after application of this Section 20 21 ("Overpayment") or less than the amount intended or required to be provided under after application of this Section 20 21 ("Underpayment"). (i) In (i)In the event that: (A) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which that the Accountants believe has a high probability of success, that an Overpayment has been made or (B) it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then the Executive shall pay any such Overpayment to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive's receipt of the Overpayment until the date of repayment. (ii) In (ii)In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would should have otherwise been paid to the Executive until the payment date. View More
Section 280G of the Code. Notwithstanding any other provision If there is a change of this Agreement ownership or any other plan, arrangement effective control or agreement to change in the contrary, if any ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G of the Code) (a "Change in Control") and any payment or benefit (including payments or and benefits provided or pursuant to be provided by this Agreement) that the Executive would receive from the Company or its affilia...tes to Executive or for Executive's benefit pursuant to the terms of this Agreement or otherwise (the "Covered Payments") ("Transaction Payment") would (i) constitute parachute payments (the "Parachute Payments") a "parachute payment" within the meaning of Section 280G of the Code and would, (ii) but for this Section 20 would sentence, be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the (the "Excise Tax"), then prior the Company shall cause to making be determined, before any amounts of the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) Transaction Payment are paid to the Executive Executive, which of the Covered Payments after following two alternative forms of payment would result in the Executive's receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (A) payment in full of the entire amount of the Transaction Payment (a "Full Payment"), or (B) payment of only a part of the Transaction Payment so that the Executive receives the largest payment possible without the imposition of the Excise Tax to (ii) the Net Benefit to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax (that amount, the (a "Reduced Amount"). "Net Benefit" shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. (a) Any such reduction shall be made in accordance with Section 409A of the Code and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any determination required under this Section 20 shall be made in writing in good faith by the accounting firm that was the Company's independent auditor immediately before the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by the Company that is reasonably acceptable to the Executive (the "Accountants"). The Company Payment"), and the Executive shall provide be entitled to payment of whichever amount shall result in a greater after-tax amount for the Accountants with such information and documents as the Accountants may reasonably request in order Executive. For purposes of determining whether to make a determination under this Section 20. For purposes of making Full Payment or a Reduced Payment, the calculations Company shall cause to be taken into account all applicable federal, state and determinations required by this Section 20, local income and employment taxes and the Accountants may rely on reasonable, good faith assumptions and approximations concerning Excise Tax (all computed at the application of Section 280G and Section 4999 highest applicable marginal rate, net of the Code. The Accountants' determinations maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, the reduction in payments and/or benefits shall be final and binding on the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accountants in connection with the calculations required by this Section 20. (c) It is possible that after the determinations and selections made pursuant to this Section 20 the Executive will receive Covered Payments that are occur in the aggregate more than the amount 7 following order: (1) first, reduction of cash payments, in reverse order of scheduled payment date (or if necessary, to zero), (2) then, reduction of non-cash and non-equity benefits provided under this Section 20 ("Overpayment") or less than the amount provided under this Section 20 ("Underpayment"). (i) In the event that: (A) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountants believe has a high probability of success, that an Overpayment has been made or (B) it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then the Executive shall pay any such Overpayment to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) Executive, on a pro rata basis (or if necessary, to zero) and (3) then, cancellation of the Code) from acceleration of vesting of equity award compensation in the reverse order of the date of grant of the Executive's receipt of the Overpayment until the date of repayment. (ii) In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would have otherwise been paid to the Executive until the payment date. equity awards. View More
Section 280G of the Code. Notwithstanding any other provision (a) If there is a change of this Agreement ownership or any other plan, arrangement effective control or agreement to change in the contrary, if any ownership of a substantial portion of the assets of a corporation (within the meaning of Section 280G of the Code) and any payment or benefit (including payments or and benefits provided or pursuant to be provided by this Agreement) that the Executive would receive from the Company or its affiliates to Executive o...r for Executive's benefit pursuant to the terms of this Agreement or otherwise (the "Covered Payments") ("Transaction Payment") would (i) constitute parachute payments (the "Parachute Payments") a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, and would, (ii) but for this Section 20 would sentence, be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the (the "Excise Tax"), then prior the Company shall cause to making be determined, before any amounts of the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) Transaction Payment are paid to the Executive Executive, which of the Covered Payments after following two alternative forms of payment would result in the Executive's receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a "Full Payment") or (2) payment of only a part of the Transaction Payment so that the Executive receives the largest payment possible without the imposition of the Excise Tax (a "Reduced Payment"). For purposes of determining whether to (ii) make a Full Payment or a Reduced Payment, the Net Benefit Company shall cause to the Executive if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to taken into account all applicable federal, state and local income taxes and the Excise Tax (that amount, (all computed at the "Reduced Amount"). "Net Benefit" shall mean the present value highest applicable marginal rate, net of the Covered Payments net maximum reduction in federal income taxes which could be obtained from a deduction of all federal, state, local, foreign income, employment such state and excise taxes. (a) Any such local taxes). If a Reduced Payment is made, the reduction shall be made in accordance with Section 409A payments and/or benefits will occur in the following order: (1) first, reduction of cash payments, in reverse order of scheduled payment date (or if necessary, to zero), (2) then, reduction of non-cash and non-equity benefits provided to the Executive, on a pro rata basis (or if necessary, to zero), and (3) then, cancellation of the Code acceleration of vesting of equity award compensation in the reverse order of the date of grant of the Executive's equity awards. (b) Unless the Executive and the following: (i) the Covered Payments which do not constitute nonqualified deferred compensation subject to Section 409A of the Code shall be reduced first; and (ii) all other Covered Payments shall then be reduced as follows: (A) cash payments shall be reduced before non-cash payments; and (B) payments to be made on a later payment date shall be reduced before payments to be made on an earlier payment date. (b) Any Company otherwise agree in writing, any determination required under this Section 20 section shall be made in writing in good faith by the accounting firm that was the Company's independent auditor immediately before public accountants (the "Accountants"), whose determination shall be conclusive and binding upon the change in control/an independent accounting firm selected by the Company/an independent accounting firm selected by Executive and the Company that is reasonably acceptable for all purposes. For purposes of making the calculations required by this section, the 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 Accountants shall provide detailed supporting calculations to the Executive (the "Accountants"). The Company and the Executive as requested by the Company or the Executive. The Executive and the Company shall provide furnish to the Accountants with such information and documents as the Accountants may reasonably request in order to make a determination under this Section 20. For purposes of making section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations and determinations required contemplated by this Section 20, 12(b). 15 13. Assignment and Successors. The Company may assign its rights and obligations under this Agreement to any entity, including any successor to all or substantially all the Accountants may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 assets of the Code. Company, by merger or otherwise, and may assign or encumber this Agreement and its rights hereunder as security for indebtedness of the Company and its Affiliates. The Accountants' determinations Executive may not assign his rights or obligations under this Agreement to any individual or entity. This Agreement shall be final binding upon and binding on inure to the benefit of the Company and the Executive. The Company shall be responsible for all fees Executive and expenses incurred by the Accountants in connection with the calculations required by this Section 20. (c) It is possible that after the determinations their respective successors, assigns, personnel, legal representatives, executors, administrators, heirs, distributees, devisees and selections made pursuant to this Section 20 the Executive will receive Covered Payments that are in the aggregate more than the amount provided under this Section 20 ("Overpayment") or less than the amount provided under this Section 20 ("Underpayment"). (i) legatees, as applicable. In the event that: (A) the Accountants determine, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or the Executive which the Accountants believe has a high probability of success, that an Overpayment has been made or (B) it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved that an Overpayment has been made, then the Executive shall pay any such Overpayment to the Company together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date of the Executive's receipt death following a termination of the Overpayment until the date of repayment. (ii) In the event that: (A) the Accountants, based upon controlling precedent or substantial authority, determine that an Underpayment has occurred or (B) a court of competent jurisdiction determines that an Underpayment has occurred, any such Underpayment will be paid promptly by the Company to or for the benefit of the Executive together with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code) from the date the amount would have his engagement, all unpaid amounts otherwise been paid due to the Executive until the payment date. (including under Section 5) shall be paid to his estate. View More
Section 280G of the Code. Notwithstanding anything to the contrary contained herein (or any other agreement entered into by and between Executive and the Company or any incentive arrangement or plan offered by the Company), in the event that any amount or benefit paid or distributed to Executive pursuant to this Agreement, taken together with any amounts or benefits otherwise paid to Executive by the Company (collectively, the "Covered Payments"), would constitute an "excess parachute payment" as defined in Section 280G ...of the Code, and would thereby subject Executive to an excise tax under Section 4999 of the Code (an "Excise Tax"), the provisions of this Section 10 shall apply. If the aggregate present value (as determined for purposes of Section 280G of the Code) of the Covered Payments exceeds the amount which can be paid to Executive without Executive incurring an Excise Tax, then the amounts payable to Executive under this Agreement (or any other agreement by and between Executive and the Company or pursuant to any incentive arrangement or plan offered by the Company) shall be reduced (but not below zero) to the maximum amount which may be paid hereunder without Executive becoming subject to the Excise Tax (such reduced payments to be referred to as the "Payment Cap"). In the event Executive receives reduced payments and benefits as a result of application of this Section 10, Executive shall have the right to designate which of the payments and benefits otherwise set forth herein (or any other agreement between the Company and Executive or any incentive arrangement or plan offered by the Company) shall be received in connection with the application of the Payment Cap, subject to the following sentence. Reduction shall first be made from payments and benefits which are determined not to be nonqualified deferred compensation for purposes of Section 409A of the Code, and then shall be made (to the extent necessary) out of payments and benefits that are subject to Section 409A of the Code and that are due at the latest future date.View More
Section 280G of the Code. Notwithstanding anything to the contrary contained herein (or any other agreement entered into by and between Executive and the Company or any incentive arrangement or plan offered by the Parent or Company), in the event that any amount or benefit paid or distributed to Executive pursuant to this Agreement, taken together with any amounts or benefits otherwise paid to Executive by the Parent or Company (collectively, the "Covered Payments"), would constitute an "excess parachute payment" as defi...ned in Section 280G of the Code, and would thereby subject Executive to an excise tax under Section 4999 of the Code (an "Excise Tax"), the provisions of this Section 10 shall apply. If the aggregate present value (as determined for purposes of Section 280G of the Code) of the Covered Payments exceeds the amount which can be paid to Executive without Executive incurring an Excise Tax, then the amounts payable to Executive under this Agreement (or any other agreement by and between Executive and Executive, the Parent, and/or the Company or pursuant to any incentive arrangement or plan offered by the Parent or Company) shall be reduced (but not below zero) to the maximum amount which may be paid hereunder without Executive becoming subject to the Excise Tax (such reduced payments to be referred to as the "Payment Cap"). In the event Executive receives reduced payments and benefits as a result of application of this Section 10, Executive shall have the right to designate which of the payments and benefits otherwise set forth herein (or any other agreement between the Parent, the Company and and/or Executive or any incentive arrangement or plan offered by the Parent or Company) shall be received in connection with the application of the Payment Cap, subject to the following sentence. Reduction shall first be made from payments and benefits which are determined not to be nonqualified deferred compensation for purposes of Section 409A of the Code, and then shall be made (to the extent necessary) out of payments and benefits that are subject to Section 409A of the Code and that are due at the latest future date. 12 11. No Guarantee of Tax Consequences. The Board, the Compensation Committee, the Parent, the Company and their Affiliates, officers and employees make no commitment or guarantee to Executive that any federal, state, local or other tax treatment will apply or be available to Executive or any other person eligible for compensation or benefits under this Agreement and assume no liability whatsoever for the tax consequences to Executive or to any other person eligible for compensation or benefits under this Agreement. View More
Section 280G of the Code. In the event that it is determined that any payments or benefits provided under this Agreement, together with any payments or benefits to be provided under any other plan, program, arrangement or agreement, would constitute parachute payments within the meaning of Section 280G of the Internal Revenue Code of 1986 as amended, and any regulations and Treasury guidance promulgated thereunder (collectively, "Section 280G of the Code") and would, but for this Section 12 be subject to the excise tax i...mposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (the "Excise Tax"), then the amounts of any such payments or benefits under this Agreement and such other arrangements shall be either (a) paid in full or (b) reduced to the minimum extent necessary to ensure that no portion of the payments or benefits is subject to the Excise Tax, whichever of the foregoing (a) or (b) results in the Executive's receipt on an after-tax basis of the greatest amount of payments and benefits after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax). Company shall cooperate in good faith with the Executive in making such determination, including but not limited to providing the Executive with an estimate of any parachute payments as soon as reasonably practicable prior to an event constituting a change in the ownership or effective control of Company or in the ownership of a substantial portion of the assets of Company (within the meaning of Section 280G(b)(2)(A) of the Code). Any such reduction pursuant to this Section 12 shall be made in a manner that results in the greatest economic benefit for the Executive and is consistent with the requirements of Section 409A of the Code. Any determination required under this Section 12 shall be made in writing in good faith by a nationally recognized public accounting firm selected by Company and paid for by Company. Company and the Executive shall provide the accounting firm with such information and documents as the accounting firm may reasonably request in order to make a determination under this Section 12. -12- 13. Entire Agreement; Modification. This Agreement and the Covenants Agreement constitute the entire agreement between the parties relating to Executive's employment by (or service to) Company or any of its subsidiaries and/or affiliates and supersede all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral, including, without limitation, illustrative terms of employment and that certain term sheet previously provided to Executive dated September 4, 2018. This Agreement may be amended or modified only with the written consent of Executive and Company. No oral amendment or modification will be effective under any circumstances whatsoever. THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES FIRST ABOVE WRITTEN. [The remainder of this page is intentionally left blank.]View More
Section 280G of the Code. In the event that it is determined that any payments or benefits provided under this Agreement, together with any payments or benefits to be provided under any other plan, program, arrangement or agreement, would constitute parachute payments within the meaning of Section 280G of the Internal Revenue Code of 1986 as amended, and any regulations and Treasury guidance promulgated thereunder (collectively, "Section 280G of the Code") and would, but for this Section 12 be subject to the excise tax i...mposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (the "Excise Tax"), then the amounts of any such payments or benefits under this Agreement and such other arrangements shall be either (a) paid in full or (b) reduced to the minimum extent necessary to ensure that no portion of the payments or benefits is subject to the Excise Tax, whichever of the foregoing (a) or (b) results in the Executive's receipt on an after-tax basis of the greatest amount of payments and benefits after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax). Company shall cooperate in good faith with the Executive in making such determination, including but not limited to providing the Executive with an estimate of any parachute payments as soon as reasonably practicable prior to an event constituting a change in the ownership or effective control of Company or in the ownership of a substantial portion of the assets of Company (within the meaning of Section 280G(b)(2)(A) of the Code). Any such reduction pursuant to this Section 12 shall be made in a manner that results in the greatest economic benefit for the Executive and is consistent with the requirements of Section 409A of the Code. Any determination required under this Section 12 shall be made in writing in good faith by a nationally recognized public accounting firm selected by Company and paid for by Company. Company and the Executive shall provide the accounting firm with such information and documents as the accounting firm may reasonably request in order to make a determination under this Section 12. -12- 13. Entire Agreement; Modification. This Agreement and the Covenants Agreement constitute the entire agreement between the parties relating to Executive's employment by (or service to) Company or any of its subsidiaries and/or affiliates and supersede all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral, including, without limitation, illustrative terms of employment and that certain term sheet previously provided to Executive dated September 4, 2018. This Agreement may be amended or modified only with the written consent of Executive and Company. No oral amendment or modification will be effective under any circumstances whatsoever. THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES FIRST ABOVE WRITTEN. [The remainder of this page is intentionally left blank.]View More
Section 280G of the Code. b.All determinations to be made under this Section 12 shall be made by an independent public accounting firm chosen by the Company (the "Accounting Firm"). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the restrictive covenants in effect for the Executive pursuant to Section 11 this Agreement, and the amount of the Executive's potential parachute payment under Section 280G of the Code shall reduced ...by the value of those restrictive covenants to the extent consistent with Section 280G of the Code. All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 12 shall be borne solely by the Company. c.To the extent a reduction to the Total Payments is required to be made in accordance with this Section 12, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to the Executive. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to the Executive. Notwithstanding the foregoing, any reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis, but not below zero.View More
Section 280G of the Code. b.All 122 a. Anything in this Agreement to the contrary notwithstanding, in the event that a Change in Control occurs and it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise ("Total Payments") would otherwise exceed the amount (the "Safe Harbor Amount") that could be received by the Executive without the imposition of an excise ta...x under Section 4999 of Code, then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Section 280G of the Code, does not exceed the greater of the following dollar amounts (the "Benefit Limit"): (1) the Safe Harbor Amount, or (2) the greatest after-tax amount payable to the Executive after taking into account any excise tax imposed under Section 4999 of the Code on the Total Payments. b. All determinations to be made under this Section 12 shall be made by an independent public accounting firm chosen by the Company (the "Accounting Firm"). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the restrictive covenants in effect for the Executive pursuant to Section 11 this Agreement, and the amount of the Executive's potential parachute payment under Section 280G of the Code shall reduced by the value of those restrictive covenants to the extent consistent with Section 280G of the Code. All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 12 shall be borne solely by the Company. c.To c. To the extent a reduction to the Total Payments is required to be made in accordance with this Section 12, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to the Executive. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to the Executive. Notwithstanding the foregoing, any reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis, but not below zero. View More
Section 280G of the Code. If any payment or benefit due under this Agreement, together with all other payments and benefits that Executive receives or is entitled to receive from the Company or any of its subsidiaries, Affiliates or related entities, would (if paid or provided) constitute an excess parachute payment for purposes of Section 280G of the Code, the amounts otherwise payable and benefits otherwise due under this Agreement will either (i) be delivered in full, or (ii) be limited to the minimum extent necessary... to ensure that no portion thereof will fail to be tax-deductible to the Company by reason of Section 280G of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state or local income and employment taxes and the excise tax imposed under Section 4999 of the Code, results in the receipt by the Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be subject to the excise tax imposed under Section 4999 of the Code. In the event that the payments and/or benefits are to be reduced pursuant to this Section 14, such payments and benefits shall be reduced such that the reduction of cash compensation to be provided to the Executive as a result of this Section 14 is minimized. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. All determinations required to be made under this Section 14 shall be made by the Company's independent public accounting firm, or by another advisor mutually agreed to by the parties.View More
Section 280G of the Code. If any payment or benefit due under this Agreement, together with all other payments and benefits that Executive receives or is entitled to receive from the Company Company, Enstar, or any of its their subsidiaries, Affiliates affiliates, or related entities, would (if paid or provided) constitute an excess "excess parachute payment payment" for purposes of Section 280G of the Code, the amounts otherwise payable and benefits otherwise due under this Agreement will either (i) be delivered in full..., or (ii) be limited to the minimum extent necessary to ensure that no portion thereof will fail to be tax-deductible to the Company by reason of Section 280G of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state or local income and employment taxes and 9 the excise tax imposed under Section 4999 of the Code, results in the receipt by the Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be subject to the excise tax imposed under Section 4999 of the Code. In the event that the payments and/or benefits are to be reduced pursuant to this Section 14, 15, such payments and benefits shall be reduced such that the reduction of cash compensation to be provided to the Executive as a result of this Section 14 15 is minimized. In Notwithstanding the immediately preceding sentence, in applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code Code, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. All determinations required to be made under this Section 14 15 shall be made by the Company's independent public accounting firm, firm or by another advisor mutually agreed to by the parties. View More
Section 280G of the Code. Notwithstanding any other provision of this Agreement, the number of Shares that may be issued under this Agreement and the amount of any payment that may be made under this Agreement is subject to reduction in accordance with, and to the extent provided by, this Section 5. 3 (a) If the issuance of Shares or a payment under this Agreement, together with any other payment or compensation payable to the Participant under another plan, agreement or otherwise (a "Payment") would constitute an "exces...s parachute payment" within the meaning of Section 280G of the Code, then the aggregate present value of the Payments shall be reduced (but not below zero) to the Reduced Amount if and only if the Accounting Firm determines that the reduction will provide the Participant with a greater net after-tax benefit than the Participant would realize without any reduction. No reduction shall be made and the Participant will be entitled to receive all of the Payments, unless the reduction would provide the Participant with a greater net after-tax benefit. (b) The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of all Payments without causing any Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code. The term "Excise Tax" means the excise tax imposed under Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax. (c) If any Payments are reduced under this Section 5, then the Payments shall be reduced on a nondiscretionary basis in such a way to minimize the reduction in economic value deliverable to the Participant. Where more than one Payment has the same value for this purpose and they are payable at different times, they will be reduced on a pro rata basis. (d) All determinations under this Section 5 shall be made by an independent certified public accounting firm selected by the Company and agreed to by the Participant immediately prior to any Change in Control (the "Accounting Firm"). The Accounting Firm shall provide its determinations and any supporting calculations both to the Company and the Participant within ten days of the Change in Control. Any such determination by the Accounting Firm shall be binding upon the Company and the Participant. All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5 shall be borne solely by the Company.View More
Section 280G of the Code. Notwithstanding any other provision of (a) Anything in this Agreement, Policy to the number of Shares contrary notwithstanding and except as set forth in subparagraph (b) below, in the event it shall be determined that may be issued under this Agreement and the amount of any payment that may be made under this Agreement is subject to reduction or distribution in accordance with, and to the extent provided by, this Section 5. 3 (a) If the issuance nature of Shares or a payment under this Agreemen...t, together with any other payment or compensation payable to the Participant under another plan, agreement or otherwise (a "Payment") would constitute an "excess parachute payment" within (within the meaning of Section 280G 280G(b)(2) of the Code, then Code) to or for the aggregate present value benefit of the Payments shall be reduced (but not below zero) Participant, whether paid or payable or distributed or distributable pursuant to the Reduced Amount if and only if the Accounting Firm determines that the terms of this Policy or otherwise, but determined without regard to any reduction will provide the Participant with a greater net after-tax benefit than the Participant (if any) required under this Section 9 (the "Payment"), would realize without any reduction. No reduction shall be made and the Participant will be entitled to receive all of the Payments, unless the reduction would provide the Participant with a greater net after-tax benefit. (b) The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of all Payments without causing any Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code. The term "Excise Tax" means the excise tax imposed under by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax. (c) tax ("Excise Tax"), then the Company shall automatically reduce (the "Reduction") the Participant's Payment to the minimum extent necessary to prevent the Payment (after the Reduction) from being subject to the Excise Tax, but only if, by reason of the Reduction, the after-tax benefit of the reduced Payment exceeds the after-tax benefit if such Reduction was not made. If the after-tax benefit of the reduced Payment does not exceed the after-tax benefit if the Payment is not reduced, then the Reduction shall not apply. If the Reduction is applicable, the Payment shall be reduced in such a manner that provides the Participant with the best economic benefit and, to the extent any Payments portions of the Payment are economically equivalent with each other, each shall be reduced pro rata. (b) All determinations required to be made under this Section 5, then 9, including the Payments shall be reduced on a nondiscretionary basis in such a way to minimize after-tax benefit and calculation of the reduction in economic value deliverable to the Participant. Where more than one Payment has the same value for this purpose and they are payable at different times, they will be reduced on a pro rata basis. (d) All determinations under this Section 5 Reduction, shall be made by an independent a certified public accounting firm that is selected by the Company and (the "Accounting Firm"), which may be the Company's independent auditors. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control or the Accounting Firm declines or is unable to serve, the Participant shall appoint another certified public accounting firm, which is reasonably agreed to by the Participant immediately prior Company, to any Change in Control (the "Accounting Firm"). The make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). In the event that the Accounting Firm determines that no Excise Tax is payable by the Participant, either with or without application of the Reduction under this Section 9, then the Accounting Firm shall provide its determinations and any supporting calculations both furnish the Participant with a written opinion that failure to report the Excise Tax on the Participant's applicable federal income tax return would not result in the imposition of a negligence or similar penalty. If the Reduction is applicable, the Company and shall provide the Participant within ten days with a written summary of the Change in Control. Any such determination portions of the Payment that will be reduced. All fees and expenses of the Accounting Firm shall be borne solely by the Company. All determinations by the Accounting Firm made under this Section 9 shall be binding upon the Company and the Participant. All 7 10. Scope of the fees and expenses of the Accounting Firm in performing the determinations referred to Policy. Nothing in this Section 5 Policy shall be borne solely by deemed to entitle the Company. Participant to continued employment with the Company or its Affiliates, and if a Participant's employment with the Company shall terminate prior to or following a Change in Control Protection Period, the Participant shall have no further rights under this Policy, except as otherwise provided hereunder. View More
Section 280G of the Code. If any payment or benefit under this Agreement or otherwise (the "Payments") constitutes an "excess parachute payment" within the meaning of Section 280G of the Code, the Payments shall be reduced so that no part of such Payments constitutes an excess parachute payment; provided, however, that such reduction shall occur if and only if the net after-tax payment to the Executive after the reduction is greater than the net after-tax payment without such reduction. For purposes of this Section 9, th...e Executive shall be deemed subject to the highest rate with respect to any applicable taxes. In their determinations with respect to this Section 9, the Company and the Executive may rely on the calculations and analysis by a recognized national accounting firm that the Executive shall have the right to appoint from the three choices amongst such accounting firms provided by the Company. The Company shall name the three national accounting firms for the Executive to select promptly and without delay. Any fees and expenses charged by such accounting firm with respect to calculations and analysis hereunder shall be the obligation of and paid by the Company as they come due, promptly and without delay. All other reasonable costs, fees and expenses with respect to the subject matter described in this Section 9, including those incurred to retain legal counsel for the Executive shall be borne by the Company. -17- 10. No Conflicting Agreements. As of the date of this Agreement, the Executive hereby represents and warrants to the Company that his entering into this Agreement, and the obligations and duties undertaken by him hereunder, will not conflict with, constitute a breach of, or otherwise violate the terms of any other employment or other written agreement to which he is a party. The Company represents and warrants that it is a corporation duly organized and existing under the laws of the State of California and that execution and delivery of this Agreement has been duly authorized by all necessary corporate action.View More
Section 280G of the Code. If any payment or benefit under this Agreement or otherwise (the "Payments") constitutes an "excess parachute payment" within the meaning of Section 280G of the Code, the Payments shall be reduced so that no part of such Payments constitutes an excess parachute payment; provided, however, that such reduction shall occur if and only if the net after-tax payment to the Executive after the reduction is greater than the net after-tax payment without such reduction. For purposes of this Section 9, th...e Executive shall be deemed subject to the highest rate with respect to any applicable taxes. In their determinations with respect to this Section 9, the Company and the Executive may rely on the calculations and analysis by a recognized national accounting firm that the Executive shall have the right to appoint from the three choices amongst such accounting firms provided by the Company. The Company shall name the three national accounting firms for the Executive to select promptly and without delay. Any fees and expenses charged by such accounting firm with respect to calculations and analysis hereunder shall be the obligation of and paid by the Company as they come due, promptly and without delay. All other reasonable costs, fees and expenses with respect to the subject matter described in this Section 9, including those incurred to retain legal counsel for the Executive shall be borne by the Company. -17- 10. No Conflicting Agreements. As of the date of this Agreement, the Executive hereby represents and warrants to the Company that his entering into this Agreement, and the obligations and duties undertaken by him hereunder, will not conflict with, constitute a breach of, or otherwise violate the terms of any other employment or other written agreement to which he is a party. The Company represents and warrants that it is a corporation duly organized and existing under the laws of the State of California and that execution and delivery of this Agreement has been duly authorized by all necessary corporate action.View More
