280G Cutback. Notwithstanding any other provision in this Agreement to the contrary, if any payment received or to be received by the Grantee under this Agreement in connection with a Change in Control or the termination of employment (collectively, the “Payments”) would, whether payable under the terms of this Agreement alone or together with any payment or benefit under any other plan, arrangement or agreement with the Company or one of its Subsidiaries constitute a “parachute payment” within the meaning of Section 280G of the Code, the payment or payments due to the Grantee under this Agreement shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”). Whether and how the limitation under this Section 19 is applicable shall be determined under the Section 280G Rules set forth in Exhibit A, which shall be enforceable as if set forth in this Agreement. The following rules shall apply for purposes of determining whether and how the limitations provided under Section 19 are applicable to the Participant. 1. All determinations under Section 19 of this Agreement and this Exhibit A will be made by an accounting firm or law firm that is selected for this purpose by the Company’s Chief Executive Officer prior to a Change in Control (“280G Firm”). All fees and expenses of the 280G Firm shall be borne by the Company. The Company will direct the 280G Firm to submit any determination it makes under Section 19 of this Agreement and this Exhibit A and detailed supporting calculations to both the Participant and the Company as soon as reasonably practicable. 2. If the 280G Firm determines that reductions are required under Section 19 of this Agreement, the 280G Firm shall also determine which Payments shall be reduced, with the Payments that otherwise would be made last in time reduced first, to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to the Participant. 3. As a result of the uncertainty in the application of Section 280G at the time that the 280G Firm makes its determinations under this Section, it is possible that amounts will have been paid or distributed to the Participant that should not have been paid or distributed (collectively, the “Overpayments”), or that additional amounts should be paid or distributed to the Participant (collectively, the “Underpayments”). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Participant, which assertion the 280G Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Participant must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Participant to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Participant is subject to tax under Section 4999 of the Code or generate a refund of tax imposed under Section 4999 of the Code. If the 280G Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the 280G Firm will notify the Participant and the Company of that determination and the amount of that Underpayment will be paid to the Participant promptly by the Company. 4. The Participant will provide the 280G Firm access to, and copies of, any books, records, and documents in the Participant’s possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by Section 19 of this Agreement and this Exhibit A.
Appears in 1 contract
Sources: Stock Appreciation Rights Agreement (Ion Geophysical Corp)
280G Cutback. Notwithstanding If any other provision in this Agreement payment, benefit or distribution of any type to or for the contrarybenefit of Executive, if any payment received whether paid or payable, provided or to be received by provided, or distributed or distributable pursuant to the Grantee under terms of this Agreement in connection with a Change in Control or the termination of employment otherwise (collectively, the “Parachute Payments”) would, whether payable under the terms of this Agreement alone or together with any payment or benefit under any other plan, arrangement or agreement with the Company or one of its Subsidiaries constitute a “parachute payment” within the meaning of Section 280G of the Code, the payment or payments due to the Grantee under this Agreement shall be reduced to the extent necessary so that no portion thereof shall be would subject Executive to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”). Whether and how the limitation under this Section 19 is applicable shall ) or would not be determined under the deductible as a result of Section 280G Rules set forth in Exhibit A, which shall be enforceable as if set forth in this Agreement. The following rules shall apply for purposes of determining whether and how the limitations provided under Section 19 are applicable to the Participant.
1. All determinations under Section 19 of this Agreement and this Exhibit A will be made by an accounting firm or law firm that is selected for this purpose by the Company’s Chief Executive Officer prior to a Change in Control (“280G Firm”). All fees and expenses of the 280G Firm shall be borne by the Company. The Company will direct the 280G Firm to submit any determination it makes under Section 19 of this Agreement and this Exhibit A and detailed supporting calculations to both the Participant and the Company as soon as reasonably practicable.
2. If the 280G Firm determines that reductions are required under Section 19 of this AgreementCode, the 280G Firm shall also determine which Parachute Payments shall be reduced, with the Payments that otherwise would be made last in time reduced first, to the extent necessary so that no portion thereof the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Parachute Payments to be subject to the excise tax imposed by Section 4999 of Excise Tax or would cause the Code, and the Parachute Payments to not be deductible. The Company shall pay such reduced amount reduce or eliminate the Parachute Payments by first reducing or eliminating any cash payments (with the payments to the Participant.
3. As a result of the uncertainty be made furthest in the application of Section 280G at the time that the 280G Firm makes its determinations under this Section, it is possible that amounts will have been paid or distributed to the Participant that should not have been paid or distributed (collectively, the “Overpayments”future being reduced first), then by reducing or eliminating accelerated vesting of stock options or other awards that additional amounts should be paid or distributed to the Participant (collectively, the “Underpayments”). If the 280G Firm determines, vest based on either the assertion attainment of a deficiency performance measures, then by the Internal Revenue Service against the Company reducing or the Participant, which assertion the 280G Firm believes has a high probability eliminating accelerated vesting of success stock options or controlling precedent or substantial authority, other awards that an Overpayment has been made, the Participant must repay vest based only on Executive’s continued service to the Company, without interesttaking the last ones scheduled to vest (absent the acceleration) first, then by reducing or eliminating any other remaining Parachute Payments; provided, however, that no loan will be deemed such reduction or elimination shall apply to have been made and no amount will be payable by any non-qualified deferred compensation amounts (within the Participant to meaning of Section 409A of the Company unless, and then only Code) to the extent that, such reduction or elimination would accelerate or defer the deemed loan and timing of such payment would either reduce the amount on which the Participant is subject to tax under in manner that does not comply with Section 4999 of the Code or generate a refund of tax imposed under Section 4999 409A of the Code. If the 280G Firm determinesTHE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the 280G Firm will notify the Participant and the Company of that determination and the amount of that Underpayment will be paid to the Participant promptly by the Company.
4THE PARTIES HAVE EXECUTED THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN. [The Participant will provide the 280G Firm access to, and copies of, any books, records, and documents in the Participant’s possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by Section 19 remainder of this Agreement and this Exhibit A.page is intentionally left blank.]
Appears in 1 contract
280G Cutback. Notwithstanding any other provision in this Agreement to the contrary, if any payment received or to be received by the Grantee under this Agreement in connection with a Change in Control or the termination of employment (collectively, the “Payments”) would, whether payable under the terms of this Agreement alone or together with any payment or benefit under any other plan, arrangement or agreement with the Company or one of its Subsidiaries constitute a “parachute payment” within the meaning of Section 280G of the Code, the payment or payments due to the Grantee under this Agreement shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”). Whether and how the limitation under this Section 19 20 is applicable shall be determined under the Section 280G Rules set forth in Exhibit A, which shall be enforceable as if set forth in this Agreement. The following rules shall apply for purposes of determining whether and how the limitations provided under Section 19 20 are applicable to the Participant.
1. All determinations under Section 19 20 of this Agreement and this Exhibit A will be made by an accounting firm or law firm that is selected for this purpose by the Company’s Chief Executive Officer prior to a Change in Control (“280G Firm”). All fees and expenses of the 280G Firm shall be borne by the Company. The Company will direct the 280G Firm to submit any determination it makes under Section 19 20 of this Agreement and this Exhibit A and detailed supporting calculations to both the Participant and the Company as soon as reasonably practicable.
2. If the 280G Firm determines that reductions are required under Section 19 20 of this Agreement, the 280G Firm shall also determine which Payments shall be reduced, with the Payments that otherwise would be made last in time reduced first, to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to the Participant.
3. As a result of the uncertainty in the application of Section 280G at the time that the 280G Firm makes its determinations under this Section, it is possible that amounts will have been paid or distributed to the Participant that should not have been paid or distributed (collectively, the “Overpayments”), or that additional amounts should be paid or distributed to the Participant (collectively, the “Underpayments”). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Participant, which assertion the 280G Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Participant must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Participant to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Participant is subject to tax under Section 4999 of the Code or generate a refund of tax imposed under Section 4999 of the Code. If the 280G Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the 280G Firm will notify the Participant and the Company of that determination and the amount of that Underpayment will be paid to the Participant promptly by the Company.
4. The Participant will provide the 280G Firm access to, and copies of, any books, records, and documents in the Participant’s possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by Section 19 20 of this Agreement and this Exhibit A.
Appears in 1 contract
Sources: Stock Appreciation Rights Agreement (Ion Geophysical Corp)
280G Cutback. Notwithstanding If any other provision in this Agreement payment, benefit or distribution of any type to or for the contrarybenefit of Executive, if any payment received whether paid or payable, provided or to be received by provided, or distributed or distributable pursuant to the Grantee under terms of this Agreement in connection with a Change in Control or the termination of employment otherwise (collectively, the “Parachute Payments”) would, whether payable under the terms of this Agreement alone or together with any payment or benefit under any other plan, arrangement or agreement with the Company or one of its Subsidiaries constitute a “parachute payment” within the meaning of Section 280G of the Code, the payment or payments due to the Grantee under this Agreement shall be reduced to the extent necessary so that no portion thereof shall be would subject Executive to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”). Whether and how the limitation under this Section 19 is applicable shall ) or would not be determined under the deductible as a result of Section 280G Rules set forth in Exhibit A, which shall be enforceable as if set forth in this Agreement. The following rules shall apply for purposes of determining whether and how the limitations provided under Section 19 are applicable to the Participant.
1. All determinations under Section 19 of this Agreement and this Exhibit A will be made by an accounting firm or law firm that is selected for this purpose by the Company’s Chief Executive Officer prior to a Change in Control (“280G Firm”). All fees and expenses of the 280G Firm shall be borne by the Company. The Company will direct the 280G Firm to submit any determination it makes under Section 19 of this Agreement and this Exhibit A and detailed supporting calculations to both the Participant and the Company as soon as reasonably practicable.
2. If the 280G Firm determines that reductions are required under Section 19 of this AgreementCode, the 280G Firm shall also determine which Parachute Payments shall be reduced, with the Payments that otherwise would be made last in time reduced first, to the extent necessary so that no portion thereof the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Parachute Payments to be subject to the excise tax imposed by Section 4999 of Excise Tax or would cause the Code, and the Parachute Payments to not be deductible. The Company shall pay such reduced amount reduce or eliminate the Parachute Payments by first reducing or eliminating any cash payments (with the payments to the Participant.
3. As a result of the uncertainty be made furthest in the application of Section 280G at the time that the 280G Firm makes its determinations under this Section, it is possible that amounts will have been paid or distributed to the Participant that should not have been paid or distributed (collectively, the “Overpayments”future being reduced first), then by reducing or eliminating accelerated vesting of stock options or other awards that additional amounts should be paid or distributed to the Participant (collectively, the “Underpayments”). If the 280G Firm determines, vest based on either the assertion attainment of a deficiency performance measures, then by the Internal Revenue Service against the Company reducing or the Participant, which assertion the 280G Firm believes has a high probability eliminating accelerated vesting of success stock options or controlling precedent or substantial authority, other awards that an Overpayment has been made, the Participant must repay vest based only on Executive’s continued service to the Company, without interesttaking the last ones scheduled to vest (absent the acceleration) first, then by reducing or eliminating any other remaining Parachute Payments; provided, however, that no loan will be deemed such reduction or elimination shall apply to have been made and no amount will be payable by any non-qualified deferred compensation amounts (within the Participant to meaning of Section 409A of the Company unless, and then only Code) to the extent that, such reduction or elimination would accelerate or defer the deemed loan and timing of such payment would either reduce the amount on which the Participant is subject to tax under in manner that does not comply with Section 4999 of the Code or generate a refund of tax imposed under Section 4999 409A of the Code. If the 280G Firm determinesTHE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the 280G Firm will notify the Participant and the Company of that determination and the amount of that Underpayment will be paid to the Participant promptly by the Company.
4THE PARTIES HAVE EXECUTED THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN. [The Participant will provide the 280G Firm access to, and copies of, any books, records, and documents in the Participant’s possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by Section 19 remainder of this Agreement and this Exhibit A.page is intentionally left blank.]
Appears in 1 contract
280G Cutback. Notwithstanding any other provision anything to the contrary in this Agreement to the contraryAgreement, if any payment received or to be received by the Grantee under payments and benefits provided for in this Agreement in connection with a Change in Control or the termination of employment (collectivelyAgreement, the “Payments”) would, whether payable under the terms of this Agreement alone or together with any payment or benefit under other payments and benefits that the Executive has the right to receive from the Corporation, WGI and/or any other planof the Affiliates, arrangement or agreement with the Company or one of its Subsidiaries would constitute a “parachute payment” within the meaning of (as defined in Section 280G 280G(b)(2) of the Code), then the payments and benefits provided hereunder (beginning with any payment or payments due to the Grantee under this Agreement be paid in cash hereunder) shall be reduced to (but not below zero) so that the extent necessary present value of such total amounts and benefits received by the Executive will be $1.00 less than three times the Executive’s Base Amount and so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”). Whether such amounts and how the limitation under this Section 19 is applicable shall be determined under the Section 280G Rules set forth in Exhibit A, which shall be enforceable as if set forth in this Agreement. The following rules shall apply for purposes of determining whether and how the limitations provided under Section 19 are applicable to the Participant.
1. All determinations under Section 19 of this Agreement and this Exhibit A will be made by an accounting firm or law firm that is selected for this purpose benefits received by the Company’s Chief Executive Officer prior to a Change in Control (“280G Firm”). All fees and expenses of the 280G Firm shall be borne by the Company. The Company will direct the 280G Firm to submit any determination it makes under Section 19 of this Agreement and this Exhibit A and detailed supporting calculations to both the Participant and the Company as soon as reasonably practicable.
2. If the 280G Firm determines that reductions are required under Section 19 of this Agreement, the 280G Firm shall also determine which Payments shall be reduced, with the Payments that otherwise would be made last in time reduced first, to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code. The determination as to whether any such reduction in the amount of the benefits provided hereunder is necessary shall be in accordance with the process described herein. The Compensation Committee, with advice of counsel and such advisors to counsel as the Compensation Committee deems necessary, shall promptly, following the Executive’s Separation from Service, make an initial determination as to whether a 280G cutback, as described in the immediately preceding paragraph, is required and the amount of any such cutback. Such initial determination shall be delivered to the Executive no later than the 21st day following his Separation from Service. In the event that the Executive wishes to challenge the initial determination, the Corporation shall reimburse the Executive for reasonable attorneys’ fees that he incurs in seeking advice concerning such initial determination, provided that such reimbursement shall be conditional on the Corporation and the Executive’s chosen law firm, no later than 30 days following the Executive’s Separation from Service, signing a mutually acceptable engagement letter that sets forth a budget, hourly rates, a monthly billing arrangement for the law firm, and estimated fees for outside consultants (such as CPA firms and/or benefit consulting firms that may advise the law firm). Any challenge that the Executive wishes to make to the initial determination shall be made by written notice no later than 30 days following his receipt of the Corporation’s initial determination. The Corporation and the Executive shall work together in good faith to resolve, within 21 days of the notice of challenge from the Executive, their disputes concerning the initial determination, and the Company Corporation shall pay such reduced amount make any necessary cutbacks to payments due to the Participant.
3Executive hereunder within three days after such resolution. As If a result reduced payment is called for in accordance with this Section 8.2 and, through error or otherwise, the payments and benefits already received by the Executive under this Agreement, when aggregated with any other payments and benefits from the Corporation or WGI (or any of the uncertainty Affiliates) used in determining if a “parachute payment” exists, exceed $1.00 less than three times the Executive’s Base Amount, then the Executive shall repay, upon 30 days’ written notice (with supporting calculations explaining the demand), such excess to the Corporation upon notification that an overpayment has been made. In the event that a 280G cutback in the application of Section 280G at the time that the 280G Firm makes its determinations Executive’s compensation is made under this SectionSection 8.2 and the Executive subsequently becomes convinced that it was made in error, it is possible that amounts will have been paid or distributed then he shall promptly notify the Corporation of such alleged error. The deadline for the Executive to notify the Participant that should not have been paid or distributed (collectively, the “Overpayments”), or that additional amounts should Corporation of any such alleged error shall be paid or distributed to the Participant (collectively, the “Underpayments”). If the 280G Firm determines, based on either the assertion of a deficiency by 10 days after his timely filing with the Internal Revenue Service against of his first federal income tax return due following his Separation from Service. Any claim of the Company or the Participant, which assertion Executive that an error was made in computing the 280G Firm believes has a high probability of success or controlling precedent or substantial authority, cutback shall be forever waived if not made within the 10-day period described in the immediately preceding sentence. In the event that the Executive claims that an Overpayment has been madeerror was made in connection with a 280G cutback in his compensation, then the Participant must repay Executive and the Corporation shall work together in good faith for a period no longer than 60 days in attempting to resolve the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Participant to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Participant is subject to tax under Section 4999 of the Code or generate a refund of tax imposed under Section 4999 of the Codeclaim. If the 280G Firm determinesclaim is not resolved within such 60-day period, based upon controlling precedent or substantial authoritythen the Executive, that no later than 14 days following the end of the 60-day period, shall make demand with the American Arbitration Association for arbitration of the claim under Article XI of this Agreement. If the Executive fails to make demand for arbitration of the claim with the American Arbitration Association within such 14-day period, then any rights he might have had to recover against the Corporation for an Underpayment has occurred, error made in the 280G Firm will notify cutback shall be forever waived. If the Participant and the Company of that determination and the amount of that Underpayment will be paid Executive makes a timely demand for arbitration with regard to the Participant promptly by the Company.
4. The Participant will provide an alleged error in the 280G Firm access tocutback, the parties agree to proceed to arbitration promptly and copies of, any books, records, and documents to take all reasonable steps to cause the arbitration proceeding to occur within 90 days after the Executive makes demand with the American Arbitration Association for such arbitration. In the event that the arbitrator finds that the Corporation is indebted to the Executive due to an error made in the Participant’s possession as reasonably requested by the 280G Firm, and otherwise cooperate connection with the 280G Firm in connection with cutback, the preparation and issuance Corporation shall pay the Executive the amount of the determinations and calculations contemplated by Section 19 arbitrator’s award on the first Business Day following 45 days after the decision of this Agreement and this Exhibit A.the arbitrator becomes final.
Appears in 1 contract