280G Gross-Up. (a) In the event it will be determined that any payment or distribution by the Company or other amount with respect to the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5 (a “Payment”), is (or will be) subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any interest or penalties are (or will be) incurred by Executive with respect to the excise tax imposed by Section 4999 of the Code with respect to the Company (the excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), Executive will be entitled to receive an additional cash payment (a “Gross-Up Payment” from the Company in an amount equal to the sum of the Excise Tax and an amount sufficient to pay the cumulative Excise Tax and all cumulative income taxes (including any interest and penalties imposed with respect to such taxes) relating to the Gross-Up Payment so that the net amount retained by Executive is equal to all payments to which Employee is entitled pursuant to the terms of this Agreement (excluding the Gross-Up Payment) or otherwise less income taxes (but not reduced by the Excise Tax or by income taxes attributable to the Gross-Up Payment).
(b) Subject to the provisions of Section 5(c), all determinations required to be made under this Section 5, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at the determination, will be made by a nationally recognized certified public accounting firm selected by the Company with the consent of Executive, which should not unreasonably be withheld (the “Accounting Firm”) which will provide detailed supporting calculations both to the Company and Executive within thirty (30) days after the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm will be borne solely by the Company. The Company, as determined in accordance with this Section 5, will pay any Gross-Up Payment to Executive within five (5) days after the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by Executive, it will so i...
280G Gross-Up. In the event it is determined that any payment or distribution by the COMPANY or other amount with respect to the COMPANY to or for the benefit of EXECUTIVE, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement (including the accelerated vesting of equity awards held by EXECUTIVE) or otherwise (the “Total Payments”), is (or will be) subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any interest or penalties are (or will be) incurred by EXECUTIVE with respect to the excise tax imposed by Section 4999 of the Code with respect to the COMPANY (the excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), EXECUTIVE will be entitled to receive an additional cash payment (a “Gross-Up Payment” from the COMPANY in an amount equal to the sum of the Excise Tax.
280G Gross-Up. In the event that any amount or benefit that may be paid or otherwise provided to or in respect of the Executive by the Company or any affiliated company, whether pursuant to this Agreement or otherwise, is or may become subject to the tax imposed under Code Section 4999, the provisions of Exhibit D attached hereto shall be applicable.
280G Gross-Up. In the event that any amount or benefit that may be paid or otherwise provided to or in respect of Executive by the Company or any affiliated company, whether pursuant to this Agreement or otherwise, is or may become subject to the tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (or any successor provision), the provisions of Annex D shall be applicable.
280G Gross-Up. The Company wishes to modify the “gross up” payments provided for under Section 7 of the Employment Agreement. You will be paid “gross up” amounts in an aggregate amount equal to (i) any excise taxes incurred by you as a result of any amounts or benefits provided to you by the Company pursuant to the Employment Agreement, any other Arrangement or otherwise that are considered to be “parachute payments” under Internal Revenue Code Section 280G and the regulations promulgated thereunder, and (ii) any federal and state and local income tax liability arising as a result of the payment of such excise tax (in each case, including any interest and penalties imposed with respect to such taxes), payable within sixty (60) days after such excise and income taxes are incurred (subject to six months’ delay if and as required by Section 409A in order to avoid adverse consequences to you under Section 409A).
280G Gross-Up. In the event that any payments or benefits paid or provided to Executive in connection with the Merger will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), the Company will provide Executive with the additional payments set forth on Exhibit A no later than the end of Executive’s taxable year in which the Excise Tax is required to be paid by Executive.
280G Gross-Up. The fourth sentence of Section 6(b) of the Employment Agreement shall be amended in its entirety to read as follows: “Any Gross-Up Payment, determined pursuant to this Section 6, shall be paid by the Employer to the Executive within five days of the receipt of the Accounting Firm’s determination, but in no event later than the end of the taxable year next following the taxable year in which the Excise Tax is remitted to the Internal Revenue Service.”
280G Gross-Up. The acceleration or payment of the Termination Compensation or the Enhanced Termination Compensation pursuant to Section 8 either alone or when combined with other benefits or payments to be provided to the Employee(collectively, the “Payments”) could, in certain circumstances, subject the Employee to the excise tax provided under Section 4999 of the Code. If Section 4999 of the Code applies to any Payment, the following provisions shall apply:
(a) Anything in this Agreement to the contrary notwithstanding, in the event of a 280G Change in Control, as defined below, the Company shall reasonably determine whether at any time for any reason any payment or distribution or any acceleration of vesting of any benefit or award (a “Payment”) by the Company or any other person or entity to or for the benefit of the Employee would result in a “parachute payment” (within the meaning of Section 280G(b)(2) of the Code) whether paid or payable or distributed or distributable (or accelerated or subject to acceleration) pursuant to the terms of this Agreement or otherwise in connection with or arising out of the Employee’s employment with the Company which would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest and penalties thereon, are hereinafter collectively referred to as the “Excise Tax”). Within thirty (30) days after each Payment, but in no event later than the end of the Employee’s taxable year following the year in which the Employee remits the related taxes, the Company shall pay and the Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Employee of all taxes (including, without limitation, any income or employment taxes and the Excise Tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, the Employee retains an amount of the Gross-Up Payment equal to the sum of: (i) the Excise Tax imposed upon the Payments; and (ii) the product of any individual income tax deductions disallowed to the Employee because of the inclusion of the Gross-Up Payment in the Employee’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Emp...
280G Gross-Up. If the aggregate of all payments or benefits made or provided to the Executive under this Agreement and under all other plans and programs of the Company (the “Aggregate Payment”) is determined to constitute a parachute payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall pay to the Executive, prior to or coincident with the time any excise tax imposed by Section 4999 of the Code (the “Excise Tax”) is payable with respect to such Aggregate Payment, an additional amount that, after the imposition of all penalties, income, excise and other federal, state and local taxes thereon, is equal to the sum of the Excise Tax on the Aggregate Payment and interest and penalties imposed with respect to the Excise Tax and such additional amount (“Additional Amount”). The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this Section 6(e) shall be made by an independent auditor (the “Auditor”) selected by the Company. Notwithstanding the foregoing, in the event that the
280G Gross-Up. Attachment A hereto sets forth Executive’s rights with regard to a gross-up of the excise tax, if any, incurred under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), as a result of the Merger and any occurrences thereafter that result in an excise tax because of its relationship to the Merger and its resulting treatment as contingent on a Change in Control of VMU, and shall survive any termination of Executive’s employment. For the avoidance of doubt, Attachment A shall not be applicable with regard to any excise tax incurred under Code Section 4999 resulting from a change of ownership or effective control or a change of the ownership of a substantial portion of the assets of the Company covered by Code Section 280G(b)(2) following the consummation of the Merger (a “Future 280G Event”). With respect to a Future 280G Event, Executive’s rights with regard to a gross-up of resulting excise tax, if any, incurred under Section 4999 of the Code, shall be equivalent to the gross-up rights provided to the Chief Executive Officer.