Common use of Golden Parachute Payments Clause in Contracts

Golden Parachute Payments. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then such Payments shall either (a) be delivered in full, or (b) subject to, and in a manner consistent with the requirements of Section 409A of the Code, be reduced to the minimum extent necessary to ensure that no portion thereof will be subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state or local income and employment taxes and the Excise Tax, results in receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be subject to the Excise Tax. In the event that any Payments are to be reduced pursuant to this Section 6(f), then the reduction shall be applied as follows: (i) first, on a pro rata basis to Executive’s cash severance payments and his pro rata annual cash incentive award payment for the year of termination, (ii) second, on a pro rata basis to Executive’s equity incentive awards and (iii) third, to Executive’s benefits under the Executive Capital Accumulation Plan. The determinations to be made with respect to this Section 6(f) shall be made by a qualified accounting or legal professional firm (the “Tax Professional”) jointly selected by the Company and Executive and paid by the Company. The Tax Professional shall be a nationally recognized United States public accounting or law firm. If Executive and the Company cannot agree on the firm to serve as the Tax Professional, then Executive and the Company shall each select one such firm and those two firms shall jointly select such a different firm to serve as the Tax Professional. Absent manifest error, the determinations by the Tax Professional shall be binding upon the Company and Executive.

Golden Parachute Payments. Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) payment received by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) to or for the benefit of Executive (whether pursuant to this agreement or otherwise would constitute a “parachute payment” within the terms meaning of this Agreement or otherwise) Section 280G of the Internal Revenue Code (a “Parachute Payment”) would ), and but for this sentence, be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Section 4999 Excise Tax”), then the Company will make best efforts to obtain shareholder approval for such Payments payment in accordance with Section 280G(b)(5) and its regulations, if applicable. If shareholder approval of the Parachute Payment is not solicited, then Executive may elect (prior to the date the Parachute Payment would be triggered) to have such Parachute Payment equal to a reduced amount. Such reduced amount shall be calculated as either (ai) be delivered in full, or (b) subject to, and in a manner consistent with the requirements of Section 409A largest portion of the Code, be reduced to the minimum extent necessary to ensure Parachute Payment that would result in no portion thereof will be of the Parachute Payment being subject to the Excise TaxTax or (ii) the largest portion, up to and including the total, of the Parachute Payment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state or and local employment taxes, income and employment taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in receipt by Executive's receipt, on an after-tax basis, of the greatest greater amount of benefits, the Parachute Payment notwithstanding that all or some portion of such benefits the Payment may be subject to the Excise Tax. In If a reduction in payments or benefits constituting “parachute payments” is necessary so that the event that any Payments are to be Parachute Payment equals the reduced pursuant to this Section 6(f)amount, then the reduction shall be applied as followsoccur in the following order: (i) firstreduction of cash payments; cancellation of accelerated vesting of stock awards, on a pro rata basis to Executive’s cash severance payments and his pro rata annual cash incentive award payment for the year if applicable; reduction of termination, (ii) second, on a pro rata basis to Executive’s equity incentive awards and (iii) third, to Executive’s benefits under the Executive Capital Accumulation Planemployee benefits. The accounting firm engaged by the Company (or its successor) for general tax purposes shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with respect detailed supporting documentation, to this Section 6(fExecutive and to the Company within fifteen (15) calendar days prior to the date on which Executive's right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested. Any good faith determinations of the accounting firm made hereunder shall be made by a qualified accounting or legal professional firm (the “Tax Professional”) jointly selected by the Company final, binding and Executive and paid by the Company. The Tax Professional shall be a nationally recognized United States public accounting or law firm. If conclusive upon Executive and the Company cannot agree on the firm to serve as the Tax Professional, then Executive and the Company shall each select one such firm and those two firms shall jointly select such a different firm to serve as the Tax Professional. Absent manifest error, the determinations by the Tax Professional shall be binding upon the Company and ExecutiveCompany.

Golden Parachute Payments. Anything in this Agreement to the contrary notwithstanding, in (a) In the event it shall be determined that any payment, award, benefit payment received or distribution (or any acceleration of any payment, award, benefit or distribution) to be received by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise) otherwise but determined without regard to any additional payments required under this Section 4.4 (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this subsection (a), be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or interest any comparable federal, state, local or penalties with respect to such foreign excise tax (such excise tax, together with any such interest and penalties, are is hereinafter collectively referred to as the “Excise Tax”), then such Payments shall either (a) be delivered in fullthen, or (b) subject to, and in a manner consistent with the requirements of Section 409A of the Code, be reduced to the minimum extent necessary to ensure that no portion thereof will be subject to the Excise Taxprovisions of subsection (c) hereof, whichever Executive shall be entitled to receive an additional payment from the Company (the “Gross-Up Payment”) in such an amount that after the payment of the foregoing amountsall taxes (including without limitation, taking into account the applicable federal, state or local income any interest and employment penalties on such taxes and the Excise Tax) on the Payment and on the Gross-Up Payment, results Executive shall retain an amount equal to the Payment minus all applicable taxes on the Payment (excluding the Excise Tax). Notwithstanding the foregoing, Executive shall not be entitled to receive a Gross-Up Payment if (1) the Payments may be reduced by an amount sufficient to result in receipt no portion of the Payment retained by ExecutiveExecutive being subject to the Excise Tax (“Reduced Amount”), taking into account all applicable federal, state, local and foreign income, employment and other taxes and (2) after reducing the Payment by such Reduced Amount, Executive would receive, on an aftera pre-tax basis, an amount not less than ninety percent (90%) of the greatest amount value of benefits, notwithstanding the unreduced Payment on a pre-tax basis (the “Threshold Payment Level”). The intent of the parties is that all or some portion of such benefits may be subject if Executive is entitled to the Excise Tax. In the event that any Payments are to be reduced a Gross-Up Payment pursuant to this Section 6(f)4.4, then the reduction shall be applied as follows: (i) first, on a pro rata basis to Executive’s cash severance payments and his pro rata annual cash incentive award payment for the year of termination, (ii) second, on a pro rata basis to Executive’s equity incentive awards and (iii) third, to Executive’s benefits under the Executive Capital Accumulation Plan. The determinations to be made with respect to this Section 6(f) shall be made by a qualified accounting or legal professional firm (the “Tax Professional”) jointly selected by the Company and Executive and paid by the Company. The Tax Professional shall be a nationally recognized United States public accounting or law firm. If Executive and the Company cannot agree on the firm to serve as the Tax Professional, then Executive and the Company shall each select one such firm be solely responsible for, and those two firms shall jointly select such a different firm to serve pay, any Excise Tax on the Payment and the Gross-Up Payment and any income, employment and other taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment (as the Tax Professional. Absent manifest error, the determinations well as any loss of tax deduction caused by the Tax Professional shall be binding upon Payment or the Company and ExecutiveGross-Up Payment).