Except as noted below, the following tables were prepared as though each named executive officer's employment was terminated on December 31, 2011 using the closing price of our stock as of that day ($27.32). The amounts under the column labeled "Termination by Us without Cause or by Named Executive Officer for Good Reason on Account of a Change in Control" assume that a change in control occurred on December 31, 2011. We are required by the SEC to use these assumptions. In addition to those assumptions, we believe that the remaining assumptions listed below, which are necessary to produce these estimates, are reasonable in the aggregate. However, none of the executives' employment was terminated on December 31, 2011 and a change in control did not occur on that date. There can be no assurance that a termination of employment, a change in control or both would produce the same or similar results as those described if either or both of them occur on any other date or at any other price, or if any assumption is not correct in fact.
A 20% excise tax is payable by a named executive officer if post termination amounts that are considered to be contingent on a change in control for tax purposes equal or exceed three times the officer's average taxable income for the five years ended December 31, 2010. This tax equals 20% of all contingent payments that exceed his or her average taxable income as described above. Amounts that are subject to the 20% excise tax are not deductible under any circumstances by the buyer.
In early 2010, the Committee notified the company's executive officers that in the event their management agreements were renewed, it did not intend to provide an excise tax gross-up benefit. The Committee also determined at that time that no new management agreements would contain any excise tax gross-up benefit; therefore, no excise tax gross-up was provided in Mr. Smidler's management agreements when he became president of Industrial Distribution in September 2010. Since that time, the employment agreements for Messrs. Keating, Denninger and Steiner and Ms. Clark have been subject to annual renewal and modified to remove any reference to excise tax gross-ups. Additionally, Ms. Clark's change in control agreement was renewed by the Board, and was amended effective January 1, 2012, to remove the provision for excise tax gross-ups. The Committee will address the terms of the change in control agreements for the other executive officers when those agreements expire.
Based on the assumption that a change in control occurred on December 31, 2011, the post termination payment tables estimate the potential tax gross-up obligation based on the assumptions described above. No adjustment has been made to these amounts for the potential impact of lost deductions to a buyer after a change in control. In addition, taxable income paid prior to the year of the change in control will increase the trigger amount for the 20% excise tax.
In the event that any payments related to a change in control are subject to the 20% excise tax, the change in control agreements provide for a conditional tax gross-up payment to reimburse the named executive officer for the excise tax and additional taxes resulting from the imposition of the excise tax. The gross-up payment will be made, however, only if the amounts treated as contingent on the change in control exceed the maximum amount payable under the trigger amount described above by more than $100,000. If these amounts exceed the trigger amount by $100,000 or less, then the payments to the named executive officer will be reduced to an amount that does not trigger the 20% excise tax. If a change in control were to have occurred on December 31, 2011, Mr. Denninger would have been entitled to receive a tax gross-up payment. The company anticipates that the amount allowed to be paid to Mr. Denninger without triggering golden parachute excise taxes will increase over time as he earns taxable compensation attributable to short and long-term incentives. The tables assume that all payment of bonus and LTIP awards on an accelerated basis at target will be parachute payments even though that may not be the case depending upon the facts and circumstances at the time of payment.
These tables were prepared on the basis that the post-termination payments under the change in control agreement do not constitute payments subject to the golden parachute excise tax to the extent of the current estimated value of the non-compete provisions of the employment agreements as determined by an independent third party. The extent to which these payments may be subject to the golden parachute excise tax will be determined on the basis of the facts and circumstances at the time of an event that triggers these payments under the change in control agreements.
The post termination payment tables do not duplicate amounts disclosed elsewhere in this proxy statement that the named executive officer had earned a vested right to receive prior to January 1, 2012. These amounts primarily include the following: