Additional Payments by the Company. (i) Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by 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 (a “Payment”), is subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes. (ii) Except as provided below, the determination that a Payment is subject to an Excise Tax shall be made in writing by a nationally recognized accounting firm or executive compensation consulting firm selected by the Company (the “Accounting Firm”). Such determination shall include the amount of the Gross-Up Payment and detailed computations thereof, including any assumptions used in such computations. Any determination by the Accounting Firm will be binding on the Company and the Executive. The Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify the Company in writing of any claim by the Internal Revenue Service which, if successful, would require the Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Accounting Firm) within 10 days of the receipt of such claim. The Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect to such claim if it plans to contest the claim. The Executive shall not pay such claim prior to the expiration of the 10-day period following the date on which the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest, penalties or additions to tax with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such 10-day period (regardless of whether such claim was earlier paid as contemplated by the preceding parenthetical) that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim; (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company; (C) cooperate with the Company in good faith in order effectively to contest such claim; and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action. (iii) Without limitation on the foregoing provisions of this Section 7(h), and to the extent its actions do not unreasonably interfere with or prejudice the Executive’s disputes with the Internal Revenue Service as to other issues, the Company shall control all proceedings taken in connection with such contest and, in its reasonable discretion, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the Internal Revenue Service in respect of such claim and may, at its or in their sole option, either direct the Executive to pay the tax, interest or penalties claimed and sxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sxx for a refund, the Company shall advance an amount equal to such payment to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from all taxes (including, without limitation, income and excise taxes), interest, penalties and additions to tax imposed with respect to such advance or with respect to any imputed income with respect to such advance, as any such amounts are incurred; and, further, provided, that any extension of the statute of limitations relating to payment of taxes, interest, penalties or additions to tax for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount; and, provided, further, that any settlement of any claim shall be reasonably acceptable to the Executive, and the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and the Executive shall be entitled to settle or contest, as the case may be, any other issue. If, as a result of the Company’s action with respect to a claim, Executive receives a refund of any amount paid by the Company with respect to such claim, Executive shall promptly pay such refund to the Company. If the Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then the Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive. (iv) It is possible that no Gross-Up Payment will initially be made but that a Gross-Up Payment should have been made, or that a Gross-Up Payment will initially be made in an amount that is less than what should have been made (either of such events is referred to as an “Underpayment”). It is also possible that a Gross-Up Payment will initially be made in an amount that is greater than what should have been made (an “Overpayment”). The determination of any Underpayment or Overpayment shall be made by the Accounting Firm in accordance with Subsection (ii). In the event of an Underpayment, the amount of any such Underpayment shall be paid to the Executive as an additional Gross-Up Payment. In the event of an Overpayment, the Executive shall promptly pay to the Company the amount of such Overpayment together with interest on such amount at the applicable Federal rate provided for in Section 1274(d) of the Code for the period commencing on the date of the Overpayment to the date of such payment by the Executive to the Company. The Executive shall make such payment to the Company as soon as administratively practicable after the Company notifies the Executive of (A) the Accounting Firm’s determination that an Overpayment was made and (B) the amount to be repaid. (v) Nothing in this Section 7(h) is intended to violate the Sxxxxxxx-Xxxxx Act of 2002, as amended, and to the extent that any advance or repayment obligation hereunder would constitute such a violation, such obligation shall be modified so as to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void to the extent required by such Act.
Appears in 2 contracts
Samples: Employment Agreement (GSC Acquisition Co), Employment Agreement (GSC Acquisition Co)
Additional Payments by the Company. A. If it is determined (ias hereafter provided) Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”"), is would be subject to the excise tax imposed by Section 4999 of the CodeCode (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such excise taxtax or taxes, together with any such interest or and penalties, are hereinafter hereafter collectively referred to as the “"Excise Tax”"), the Company shall pay then Executive will be entitled to Executive receive an additional payment or payments (a “"Gross-up Up Payment”") in an amount such that that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon the Payments. The Gross-up Payment attributable .
B. Subject to a particular Payment shall the provisions of clause F below, all determinations required to be made at the time such Payment is made; providedunder this Section 6(c)(ii), however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes.
(ii) Except as provided below, the determination that a Payment is subject to including whether an Excise Tax shall is payable by Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, will be made by the Company's independent certified public accountants prior to the Change in writing by a nationally recognized accounting firm Control (the "Accounting Firm"). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within 15 calendar days after the date of the Change in Control or executive compensation consulting firm selected the date of Executive's termination of employment, if applicable, and any other such time or times as may be requested by the Company (or Executive. If the “Accounting Firm”)Firm determines that any Excise Tax is payable by Executive, the Company will pay the required Gross-Up Payment to Executive within five business days after receipt of such determination and calculations. Such If the Accounting Firm determines that no Excise Tax is payable by Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Excise Tax on his federal, state, local income or other tax return. Any determination shall include by the Accounting Firm as to the amount of the Gross-Up Payment will be binding upon the Company and detailed computations thereof, including Executive. As a result of the uncertainty in the application of Section 4999 of the Code (or any assumptions used in such computations. Any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an "Underpayment"), consistent with the calculations required to be binding on made hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to clause F below and Executive thereafter is required to make a payment of any Excise Tax, the Company or Executive may direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment will be promptly paid by the Executive. Company to, or for the benefit of, Executive within twenty days after receipt of such determination and calculations.
C. The Company and Executive shall will each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by clause B above.
D. The federal, state and local income or other tax returns filed by Executive will be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive will make an initial determination as to whether a Gross-up Payment is required and proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive's federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-up PaymentUp Payment should be reduced, Executive will within twenty days thereafter pay to the Company the amount of such reduction.
E. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by clauses B and D above will be borne by the Company. If such fees and expenses are initially advanced by Executive, the Company will reimburse Executive shall the full amount of such fees and expenses within twenty days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof.
F. Executive will notify the Company in writing of any claim by the Internal Revenue Service whichthat, if successful, would require the payment by the Company to make of a Gross-up Payment (or a Gross-up Payment in excess Up Payment. Such notification will be given as promptly as practicable but no later than 10 business days after Executive actually receives notice of that, if any, initially determined by such claim and Executive will further apprise the Accounting Firm) within 10 days Company of the receipt nature of such claim. The Company shall notify Executive claim and the date on which such claim is requested to be paid (in writing at least 10 days prior each case, to the due date of any response required with respect to such claim if it plans to contest the claimextent known by Executive). The Executive shall will not pay such claim prior to the earlier of (i) the expiration of the 1030-calendar-day period following the date on which the Executive he gives such notice to the Company and (or such shorter period ending on ii) the date that any payment of taxes, interest, penalties or additions to tax amount with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such 10-day period (regardless of whether such claim was earlier paid as contemplated by the preceding parenthetical) that it desires to contest such claim, the Executive shall: will:
(Ai) give provide the Company with any information written records or documents in his possession relating to such claim reasonably requested by the Company relating to such claim; Company;
(Bii) take such action in connection with contesting such claim as the Company shall will reasonably request in writing from time to time, including, including without limitation, limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected by the Company; ;
(Ciii) cooperate with the Company in good faith in order effectively to contest such claim; and and
(Div) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall will bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action contest and shall will indemnify and hold Executive harmlessharmless Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action.
(iii) such representation and payment of costs and expenses. Without limitation on limiting the foregoing provisions of this Section 7(h), and to the extent its actions do not unreasonably interfere with or prejudice the Executive’s disputes with the Internal Revenue Service as to other issuesclause F, the Company shall will control all proceedings taken in connection with such the contest of any claim contemplated by this clause F and, in at its reasonable discretionsole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the Internal Revenue Service taxing authority in respect of such claim (provided that Executive may participate therein at his own cost and expense) and may, at its or in their sole option, either direct the Executive to pay the tax, interest or penalties tax claimed and sxx for sue xxx a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall will determine; provided, however, that if the Company directs the Executive to pay such claim the tax claimed and sxx for sue xxx a refund, the Company shall will advance an the amount equal to of such payment to the Executive, Executive on an interest-free basis, basis and shall will indemnify and hold the Executive harmless, on an after-tax basis, from all taxes (includingany Excise Tax or income tax, without limitationincluding interest or penalties with respect thereto, income and excise taxes), interest, penalties and additions to tax imposed with respect to such advance or with respect to any imputed income with respect to such advance, as any such amounts are incurred; and, and provided further, providedhowever, that any extension of the statute of limitations relating to payment of taxes, interest, penalties or additions to tax taxes for the taxable year of the Executive with respect to which such the contested amount is claimed to be due is limited solely to such contested amount; and. Furthermore, provided, further, that any settlement the Company's control of any such contested claim shall be reasonably acceptable to the Executive, and the Company’s control of the contest shall will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, hereunder and the Executive shall will be entitled to settle or contest, as the case may be, any other issue. issue raised by the Internal Revenue Service or any other taxing authority.
G. If, as a result after the receipt by Executive of an amount advanced by the Company’s action with respect Company pursuant to a claimclause F above, Executive receives a any refund of any amount paid by the Company with respect to such claim, Executive shall promptly pay such refund will (subject to the Company. If 's complying with the Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then the Company shall immediately pay to Executive the portion requirements of such claim, if any, which it has not previously paid to Executive.
(ivclause F above) It is possible that no Gross-Up Payment will initially be made but that a Gross-Up Payment should have been made, or that a Gross-Up Payment will initially be made in an amount that is less than what should have been made (either of such events is referred to as an “Underpayment”). It is also possible that a Gross-Up Payment will initially be made in an amount that is greater than what should have been made (an “Overpayment”). The determination of any Underpayment or Overpayment shall be made by the Accounting Firm in accordance with Subsection (ii). In the event of an Underpayment, the amount of any such Underpayment shall be paid to the Executive as an additional Gross-Up Payment. In the event of an Overpayment, the Executive shall promptly within twenty days thereafter pay to the Company the amount of such Overpayment refund (together with any interest on paid or credited thereon after any taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to clause F above, a determination is made that Executive will not be entitled to any refund with respect to such amount at claim and the applicable Federal rate provided for Company does not notify Executive in Section 1274(d) writing of the Code for the period commencing on the date of the Overpayment its intent to contest such denial or refund prior to the date expiration of 30 days after such determination, then such advance will be forgiven and will not be required to be repaid and the amount of such payment by the Executive to the Company. The Executive shall make such payment to the Company as soon as administratively practicable after the Company notifies the Executive of (A) the Accounting Firm’s determination that an Overpayment was made and (B) the amount to be repaid.
(v) Nothing in this Section 7(h) is intended to violate the Sxxxxxxx-Xxxxx Act of 2002advance will offset, as amended, and to the extent that any advance or repayment obligation hereunder would constitute such a violationthereof, such obligation shall the amount of Gross-Up Payment required to be modified so as paid pursuant to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void to the extent required by such Actthis Section 6(c)(ii).
Appears in 1 contract
Additional Payments by the Company. (ia) Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by the Company to or for the benefit of Executive's benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “"Payment”"), is would be subject to the excise tax imposed by Section 4999 of the CodeInternal Revenue Code of 1986, as amended, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “"Excise Tax”"), the Company shall pay to Executive an additional payment (a “"Gross-up Payment”") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including including, without limitation, any income, employment and Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; providedAn independent, however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes.
(ii) Except as provided below, the determination that a Payment is subject to an Excise Tax shall be made in writing by a nationally recognized accounting firm or executive compensation consulting firm selected by the Company (the “"Accounting Firm”"). Such determination , shall include the amount of the Gross-Up Payment determine whether and detailed computations thereof, including any assumptions used in such computations. Any determination by the Accounting Firm will be binding on the Company and the Executive. The Company and Executive shall make an initial determination as to whether when a Gross-up Payment is required and the amount of any such the Gross-up Payment. The Company shall pay all expenses associated with these determinations.
(b) All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 5, shall be paid by the Company to Executive (or to the appropriate taxing authority on Executive's behalf) when due. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) Executive was lower than the amount actually due ("Underpayment"). In the event that the Company exhausts its remedies pursuant to Section 5(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.
(c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service whichthat, if successful, would require the payment by the Company to make a of any Gross-up Payment (or a Gross-up Payment Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after Executive is informed in excess writing of that, if any, initially determined by such claim and shall apprise the Accounting Firm) within 10 days Company of the receipt nature of such claim. The Company shall notify Executive in writing at least 10 days prior to claim and the due date of any response required with respect to on which such claim if it plans is requested to contest the claimbe paid. The Executive shall not pay such claim prior to the expiration of the 10-thirty day period following the date on which the Executive it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest, penalties or additions to tax taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such 10-day period (regardless of whether such claim was earlier paid as contemplated by the preceding parenthetical) that it desires to contest such claim, the Executive shall: shall (Ai) give the Company any information reasonably requested by the Company relating to such claim; , (Bii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; , (Ciii) cooperate with the Company in good faith in order to effectively to contest such claim; claim and (Div) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, tax (including interest and penalties with respect thereto, ) imposed as a result of the Company’s action.
(iii) such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 7(h5(c), and to the extent its actions do not unreasonably interfere with or prejudice the Executive’s disputes with the Internal Revenue Service as to other issues, the Company shall control all proceedings taken in connection with such contest and, in at its reasonable discretionsole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the Internal Revenue Service taxing authority in respect of such claim and may, at its or in their sole option, either direct the Executive to pay the tax, interest or penalties tax claimed and sxx xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, howeverfurther, that if the Company directs the Executive to pay such claim and sxx xxx for a refund, the Company shall advance an the amount equal to of such payment to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from all taxes any Excise Tax or income tax (including, without limitation, income and excise taxes), interest, including interest or penalties and additions to tax with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance, as any such amounts are incurred; andprovided, further, provided, that any extension of if Executive is required to extend the statute of limitations relating to payment of taxesenable the Company to contest such claim, interest, penalties or additions to tax for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited may limit this extension solely to such contested amount; and, provided, further, that any settlement of any claim shall be reasonably acceptable to the Executive, and the . The Company’s 's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue. issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, as a result after the receipt by Executive of an amount paid or advanced by the Company’s action Company pursuant to this Section 5, Executive receives any refund with respect to a claim, Executive receives a refund of any amount paid by the Company with respect to such claim, Executive shall promptly pay such refund to the Company. If the Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then the Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.
(iv) It is possible that no Gross-Up Payment will initially be made but that a Gross-Up Payment should have been made, or that a Gross-Up Payment will initially be made in an amount that is less than what should have been made (either of such events is referred to as an “Underpayment”). It is also possible that a Gross-Up Payment will initially be made in an amount that is greater than what should have been made (an “Overpayment”). The determination of any Underpayment or Overpayment shall be made by the Accounting Firm in accordance with Subsection (ii). In the event of an Underpayment, the amount of any such Underpayment shall be paid to the Executive as an additional Gross-Up Payment. In , Executive shall, subject to the event Company's complying with the requirements of an OverpaymentSection 5(c), the Executive shall promptly pay to the Company the amount of such Overpayment refund received (together with any interest on paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 5(c), a determination is made that Executive shall not be entitled to any refund with respect to such amount at claim and the applicable Federal rate provided for Company does not notify Executive in Section 1274(d) writing of the Code for the period commencing on the date its intent to contest such denial of the Overpayment refund prior to the date expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such payment by the Executive to the Company. The Executive advance shall make such payment to the Company as soon as administratively practicable after the Company notifies the Executive of (A) the Accounting Firm’s determination that an Overpayment was made and (B) the amount to be repaid.
(v) Nothing in this Section 7(h) is intended to violate the Sxxxxxxx-Xxxxx Act of 2002offset, as amended, and to the extent that any advance or repayment obligation hereunder would constitute such a violationthereof, such obligation shall the amount of the Gross-Up Payment required to be modified so as to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void to the extent required by such Actpaid.
Appears in 1 contract
Samples: Change in Control, Retention and Severance Agreement (Premcor Refining Group Inc)
Additional Payments by the Company. A. If it is determined (ias hereafter provided) Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”"), is would be subject to the excise tax imposed by Section 4999 of the CodeCode (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such excise taxtax or taxes, together with any such interest or and penalties, are hereinafter hereafter collectively referred to as the “"Excise Tax”"), the Company shall pay then Executive will be entitled to Executive receive an additional payment or payments (a “"Gross-up Up Payment”") in an amount such that that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon the Payments. The Gross-up Payment attributable .
B. Subject to a particular Payment shall the provisions of clause F below, all determinations required to be made at the time such Payment is made; providedunder this Section 6(c)(ii), however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes.
(ii) Except as provided below, the determination that a Payment is subject to including whether an Excise Tax shall is payable by Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, will be made by the Company's independent certified public accountants prior to the Change in writing by a nationally recognized accounting firm Control (the "Accounting Firm"). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within 15 calendar days after the date of the Change in Control or executive compensation consulting firm selected the date of Executive's termination of employment, if applicable, and any other such time or times as may be requested by the Company (or Executive. If the “Accounting Firm”)Firm determines that any Excise Tax is payable by Executive, the Company will pay the required Gross-Up Payment to Executive within five business days after receipt of such determination and calculations. Such If the Accounting Firm determines that no Excise Tax is payable by Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that she has substantial authority not to report any Excise Tax on her federal, state, local income or other tax return. Any determination shall include by the Accounting Firm as to the amount of the Gross-Up Payment will be binding upon the Company and detailed computations thereof, including Executive. As a result of the uncertainty in the application of Section 4999 of the Code (or any assumptions used in such computations. Any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will be binding on not have been made by the Company should have been made (an "Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to clause F below and the Executive.
C. The Company and Executive shall will each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by clause B above.
D. The federal, state and local income or other tax returns filed by Executive will be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive will make an initial determination as to whether a Gross-up Payment is required and proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of her federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive's federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-up PaymentUp Payment should be reduced, Executive will within twenty days thereafter pay to the Company the amount of such reduction.
E. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by clauses B and D above will be borne by the Company. If such fees and expenses are initially advanced by Executive, the Company will reimburse Executive shall the full amount of such fees and expenses within twenty days after receipt from Executive of a statement therefor and reasonable evidence of her payment thereof.
F. Executive will notify the Company in writing of any claim by the Internal Revenue Service whichthat, if successful, would require the payment by the Company to make of a Gross-up Payment (or a Gross-up Payment in excess Up Payment. Such notification will be given as promptly as practicable but no later than 10 business days after Executive actually receives notice of that, if any, initially determined by such claim and Executive will further apprise the Accounting Firm) within 10 days Company of the receipt nature of such claim. The Company shall notify Executive claim and the date on which such claim is requested to be paid (in writing at least 10 days prior each case, to the due date of any response required with respect to such claim if it plans to contest the claimextent known by Executive). The Executive shall will not pay such claim prior to the earlier of (i) the expiration of the 1030-calendar-day period following the date on which the Executive she gives such notice to the Company and (or such shorter period ending on ii) the date that any payment of taxes, interest, penalties or additions to tax amount with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such 10-day period (regardless of whether such claim was earlier paid as contemplated by the preceding parenthetical) that it desires to contest such claim, the Executive shall: will:
(Ai) give provide the Company with any information written records or documents in her possession relating to such claim reasonably requested by the Company relating to such claimCompany; -5- 6 (Bii) take such action in connection with contesting such claim as the Company shall will reasonably request in writing from time to time, including, including without limitation, limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected by the Company; ;
(Ciii) cooperate with the Company in good faith in order effectively to contest such claim; and and
(Div) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall will bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action contest and shall will indemnify and hold Executive harmlessharmless Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action.
(iii) such representation and payment of costs and expenses. Without limitation on limiting the foregoing provisions of this Section 7(h), and to the extent its actions do not unreasonably interfere with or prejudice the Executive’s disputes with the Internal Revenue Service as to other issuesclause F, the Company shall will control all proceedings taken in connection with such the contest of any claim contemplated by this clause F and, in at its reasonable discretionsole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the Internal Revenue Service taxing authority in respect of such claim (provided that Executive may participate therein at her own cost and expense) and may, at its or in their sole option, either direct the Executive to pay the tax, interest or penalties tax claimed and sxx for sue xxx a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall will determine; provided, however, that if the Company directs the Executive to pay such claim the tax claimed and sxx for sue xxx a refund, the Company shall will advance an the amount equal to of such payment to the Executive, Executive on an interest-free basis, basis and shall will indemnify and hold the Executive harmless, on an after-tax basis, from all taxes (includingany Excise Tax or income tax, without limitationincluding interest or penalties with respect thereto, income and excise taxes), interest, penalties and additions to tax imposed with respect to such advance or with respect to any imputed income with respect to such advance, as any such amounts are incurred; and, and provided further, providedhowever, that any extension of the statute of limitations relating to payment of taxes, interest, penalties or additions to tax taxes for the taxable year of the Executive with respect to which such the contested amount is claimed to be due is limited solely to such contested amount; and. Furthermore, provided, further, that any settlement the Company's control of any such contested claim shall be reasonably acceptable to the Executive, and the Company’s control of the contest shall will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, hereunder and the Executive shall will be entitled to settle or contest, as the case may be, any other issue. issue raised by the Internal Revenue Service or any other taxing authority.
G. If, as a result after the receipt by Executive of an amount advanced by the Company’s action with respect Company pursuant to a claimclause F above, Executive receives a any refund of any amount paid by the Company with respect to such claim, Executive shall promptly pay such refund will (subject to the Company. If 's complying with the Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then the Company shall immediately pay to Executive the portion requirements of such claim, if any, which it has not previously paid to Executive.
(ivclause F above) It is possible that no Gross-Up Payment will initially be made but that a Gross-Up Payment should have been made, or that a Gross-Up Payment will initially be made in an amount that is less than what should have been made (either of such events is referred to as an “Underpayment”). It is also possible that a Gross-Up Payment will initially be made in an amount that is greater than what should have been made (an “Overpayment”). The determination of any Underpayment or Overpayment shall be made by the Accounting Firm in accordance with Subsection (ii). In the event of an Underpayment, the amount of any such Underpayment shall be paid to the Executive as an additional Gross-Up Payment. In the event of an Overpayment, the Executive shall promptly within twenty days thereafter pay to the Company the amount of such Overpayment refund (together with any interest on paid or credited thereon after any taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to clause F above, a determination is made that Executive will not be entitled to any refund with respect to such amount at claim and the applicable Federal rate provided for Company does not notify Executive in Section 1274(d) writing of the Code for the period commencing on the date of the Overpayment its intent to contest such denial or refund prior to the date expiration of 30 days after such determination, then such advance will be forgiven and will not be required to be repaid and the amount of such payment by the Executive to the Company. The Executive shall make such payment to the Company as soon as administratively practicable after the Company notifies the Executive of (A) the Accounting Firm’s determination that an Overpayment was made and (B) the amount to be repaid.
(v) Nothing in this Section 7(h) is intended to violate the Sxxxxxxx-Xxxxx Act of 2002advance will offset, as amended, and to the extent that any advance or repayment obligation hereunder would constitute such a violationthereof, such obligation shall the amount of Gross-Up Payment required to be modified so as paid pursuant to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void to the extent required by such Actthis Section 6(c)(ii).
Appears in 1 contract
Additional Payments by the Company. A. If it is determined (ias hereafter provided) Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”"), is would be subject to the excise tax imposed by Section 4999 of the CodeCode (or any successor provision thereto) or to any similar tax imposed by stateor local law, or any interest or penalties with respect to such excise tax (such excise taxtax or taxes, together with any such interest or and penalties, are hereinafter hereafter collectively referred to as the “"Excise Tax”"), the Company shall pay then Executive will be entitled to Executive receive an additional payment or payments (a “"Gross-up Up Payment”") in an amount such that that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon the Payments. The Gross-up Payment attributable .
B. Subject to a particular Payment shall the provisions of clause F below, all determinations required to be made at the time such Payment is made; providedunder this Section 7(c)(ii), however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes.
(ii) Except as provided below, the determination that a Payment is subject to including whether an Excise Tax shall is payable by Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, will be made by the Company's independent certified public accountants prior to the Change in writing by a nationally recognized accounting firm Control (the "Accounting Firm"). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within 15 calendar days after the date of the Change in Control or executive compensation consulting firm selected the date of Executive's termination of employment, if applicable, and any other such time or times as may be requested by the Company (or Executive. If the “Accounting Firm”)Firm determines that any Excise Tax is payable by Executive, the Company will pay the required Gross-Up Payment to Executive within five business days after receipt of such determination and calculations. Such If the Accounting Firm determines that no Excise Tax is payable by Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Excise Tax on his federal, state, local income or other tax return. Any determination shall include by the Accounting Firm as to the amount of the Gross-Up Payment will be binding upon the Company and detailed computations thereof, including Executive. As a result of the uncertainty in the application of Section 4999 of the Code (or any assumptions used in such computations. Any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an "Underpayment"), consistent with the calculations required to be binding on made hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to clause F below and Executive thereafter is required to make a payment of any Excise Tax, the Company or Executive may direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment will be promptly paid by the Executive. Company to, or for the benefit of, Executive within twenty days after receipt of such determination and calculations.
C. The Company and Executive shall will each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by clause B above.
D. The federal, state and local income or other tax returns filed by Executive will be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive will make an initial determination as to whether a Gross-up Payment is required and proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive's federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-up PaymentUp Payment should be reduced, Executive will within twenty days thereafter pay to the Company the amount of such reduction.
E. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by clauses B and D above will be borne by the Company. If such fees and expenses are initially advanced by Executive, the Company will reimburse Executive shall the full amount of such fees and expenses within twenty days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof.
F. Executive will notify the Company in writing of any claim by the Internal Revenue Service whichthat, if successful, would require the payment by the Company to make of a Gross-up Payment (or a Gross-up Payment in excess Up Payment. Such notification will be given as promptly as practicable but no later than 10 business days after Executive actually receives notice of that, if any, initially determined by such claim and Executive will further apprise the Accounting Firm) within 10 days Company of the receipt nature of such claim. The Company shall notify Executive claim and the date on which such claim is requested to be paid (in writing at least 10 days prior each case, to the due date of any response required with respect to such claim if it plans to contest the claimextent known by Executive). The Executive shall will not pay such claim prior to the earlier of (i) the expiration of the 1030-calendar-day period following the date on which the Executive he gives such notice to the Company and (or such shorter period ending on ii) the date that any payment of taxes, interest, penalties or additions to tax amount with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such 10-day period (regardless of whether such claim was earlier paid as contemplated by the preceding parenthetical) that it desires to contest such claim, the Executive shall: will:
(Ai) give provide the Company with any information written records or documents in his possession relating to such claim reasonably requested by the Company relating to such claim; Company;
(Bii) take such action in connection with contesting such claim as the Company shall will reasonably request in writing from time to time, including, including without limitation, limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected by the Company; ;
(Ciii) cooperate with the Company in good faith in order effectively to contest such claim; and and
(Div) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall will bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action contest and shall will indemnify and hold Executive harmlessharmless Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action.
(iii) such representation and payment of costs and expenses. Without limitation on limiting the foregoing provisions of this Section 7(h), and to the extent its actions do not unreasonably interfere with or prejudice the Executive’s disputes with the Internal Revenue Service as to other issuesclause F, the Company shall will control all proceedings taken in connection with such the contest of any claim contemplated by this clause F and, in at its reasonable discretionsole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the Internal Revenue Service taxing authority in respect of such claim (provided that Executive may participate therein at his own cost and expense) and may, at its or in their sole option, either direct the Executive to pay the tax, interest or penalties tax claimed and sxx xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall will determine; provided, however, that if the Company directs the Executive to pay such claim the tax claimed and sxx xxx for a refund, the Company shall will advance an the amount equal to of such payment to the Executive, Executive on an interest-free basis, basis and shall will indemnify and hold the Executive harmless, on an after-tax basis, from all taxes (includingany Excise Tax or income tax, without limitationincluding interest or penalties with respect thereto, income and excise taxes), interest, penalties and additions to tax imposed with respect to such advance or with respect to any imputed income with respect to such advance, as any such amounts are incurred; and, and provided further, providedhowever, that any extension of the statute of limitations relating to payment of taxes, interest, penalties or additions to tax taxes for the taxable year of the Executive with respect to which such the contested amount is claimed to be due is limited solely to such contested amount; and. Furthermore, provided, further, that any settlement the Company's control of any such contested claim shall be reasonably acceptable to the Executive, and the Company’s control of the contest shall will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, hereunder and the Executive shall will be entitled to settle or contest, as the case may be, any other issue. issue raised by the Internal Revenue Service or any other taxing authority.
G. If, as a result after the receipt by Executive of an amount advanced by the Company’s action with respect Company pursuant to a claimclause F above, Executive receives a any refund of any amount paid by the Company with respect to such claim, Executive shall promptly pay such refund will (subject to the Company. If 's complying with the Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then the Company shall immediately pay to Executive the portion requirements of such claim, if any, which it has not previously paid to Executive.
(ivclause F above) It is possible that no Gross-Up Payment will initially be made but that a Gross-Up Payment should have been made, or that a Gross-Up Payment will initially be made in an amount that is less than what should have been made (either of such events is referred to as an “Underpayment”). It is also possible that a Gross-Up Payment will initially be made in an amount that is greater than what should have been made (an “Overpayment”). The determination of any Underpayment or Overpayment shall be made by the Accounting Firm in accordance with Subsection (ii). In the event of an Underpayment, the amount of any such Underpayment shall be paid to the Executive as an additional Gross-Up Payment. In the event of an Overpayment, the Executive shall promptly within twenty days thereafter pay to the Company the amount of such Overpayment refund (together with any interest on paid or credited thereon after any taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to clause F above, a determination is made that Executive will not be entitled to any refund with respect to such amount at claim and the applicable Federal rate provided for Company does not notify Executive in Section 1274(d) writing of the Code for the period commencing on the date of the Overpayment its intent to contest such denial or refund prior to the date expiration of 30 days after such determination, then such advance will be forgiven and will not be required to be repaid and the amount of such payment by the Executive to the Company. The Executive shall make such payment to the Company as soon as administratively practicable after the Company notifies the Executive of (A) the Accounting Firm’s determination that an Overpayment was made and (B) the amount to be repaid.
(v) Nothing in this Section 7(h) is intended to violate the Sxxxxxxx-Xxxxx Act of 2002advance will offset, as amended, and to the extent that any advance or repayment obligation hereunder would constitute such a violationthereof, such obligation shall the amount of Gross-Up Payment required to be modified so as paid pursuant to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void to the extent required by such Actthis Section 7(c)(ii).
Appears in 1 contract
Samples: Employment Agreement (Gartner Inc)
Additional Payments by the Company. A. If it is determined (ias hereafter provided) Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”"), is would be subject to the excise tax imposed by Section 4999 of the CodeCode (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such excise taxtax or taxes, together with any such interest or and penalties, are hereinafter hereafter collectively referred to as the “"Excise Tax”"), the Company shall pay then Executive will be entitled to Executive receive an additional payment or payments (a “"Gross-up Up Payment”") in an amount such that that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon the Payments. The Gross-up Payment attributable .
B. Subject to a particular Payment shall the provisions of clause F below, all determinations required to be made at the time such Payment is made; providedunder this Section 6(c)(ii), however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes.
(ii) Except as provided below, the determination that a Payment is subject to including whether an Excise Tax shall is payable by Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, will be made by the Company's independent certified public accountants prior to the Change in writing by a nationally recognized accounting firm Control (the "Accounting Firm"). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within 15 calendar days after the date of the Change in Control or executive compensation consulting firm selected the date of Executive's termination of employment, if applicable, and any other such time or times as may be -4- 5 requested by the Company (or Executive. If the “Accounting Firm”)Firm determines that any Excise Tax is payable by Executive, the Company will pay the required Gross-Up Payment to Executive within five business days after receipt of such determination and calculations. Such If the Accounting Firm determines that no Excise Tax is payable by Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Excise Tax on his federal, state, local income or other tax return. Any determination shall include by the Accounting Firm as to the amount of the Gross-Up Payment will be binding upon the Company and detailed computations thereof, including Executive. As a result of the uncertainty in the application of Section 4999 of the Code (or any assumptions used in such computations. Any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an "Underpayment"), consistent with the calculations required to be binding on made hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to clause F below and Executive thereafter is required to make a payment of any Excise Tax, the Company or Executive may direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment will be promptly paid by the Executive. Company to, or for the benefit of, Executive within twenty days after receipt of such determination and calculations.
C. The Company and Executive shall will each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by clause B above.
D. The federal, state and local income or other tax returns filed by Executive will be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive will make an initial determination as to whether a Gross-up Payment is required and proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive's federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-up PaymentUp Payment should be reduced, Executive will within twenty days thereafter pay to the Company the amount of such reduction.
E. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by clauses B and D above will be borne by the Company. If such fees and expenses are initially advanced by Executive, the Company will reimburse Executive shall the full amount of such fees and expenses within twenty days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof.
F. Executive will notify the Company in writing of any claim by the Internal Revenue Service whichthat, if successful, would require the payment by the Company to make of a Gross-up Payment Up Payment. Such notification will be given as promptly as practicable but no later than 10
(i) provide the Company with any written records or a Gross-up Payment documents in excess of that, if any, initially determined by the Accounting Firm) within 10 days of the receipt of such claim. The Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect his possession relating to such claim if it plans to contest the claim. The Executive shall not pay such claim prior to the expiration of the 10-day period following the date on which the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest, penalties or additions to tax with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such 10-day period (regardless of whether such claim was earlier paid as contemplated by the preceding parenthetical) that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim; Company;
(Bii) take such action in connection with contesting such claim as the Company shall will reasonably request in writing from time to time, including, including without limitation, limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected by the Company; (C) cooperate with the Company in good faith in order effectively to contest such claim; and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action.
(iii) Without limitation on the foregoing provisions of this Section 7(h), and to the extent its actions do not unreasonably interfere with or prejudice the Executive’s disputes with the Internal Revenue Service as to other issues, the Company shall control all proceedings taken in connection with such contest and, in its reasonable discretion, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the Internal Revenue Service in respect of such claim and may, at its or in their sole option, either direct the Executive to pay the tax, interest or penalties claimed and sxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sxx for a refund, the Company shall advance an amount equal to such payment to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from all taxes (including, without limitation, income and excise taxes), interest, penalties and additions to tax imposed with respect to such advance or with respect to any imputed income with respect to such advance, as any such amounts are incurred; and, further, provided, that any extension of the statute of limitations relating to payment of taxes, interest, penalties or additions to tax for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount; and, provided, further, that any settlement of any claim shall be reasonably acceptable to the Executive, and the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and the Executive shall be entitled to settle or contest, as the case may be, any other issue. If, as a result of the Company’s action with respect to a claim, Executive receives a refund of any amount paid by the Company with respect to such claim, Executive shall promptly pay such refund to the Company. If the Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then the Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.
(iv) It is possible that no Gross-Up Payment will initially be made but that a Gross-Up Payment should have been made, or that a Gross-Up Payment will initially be made in an amount that is less than what should have been made (either of such events is referred to as an “Underpayment”). It is also possible that a Gross-Up Payment will initially be made in an amount that is greater than what should have been made (an “Overpayment”). The determination of any Underpayment or Overpayment shall be made by the Accounting Firm in accordance with Subsection (ii). In the event of an Underpayment, the amount of any such Underpayment shall be paid to the Executive as an additional Gross-Up Payment. In the event of an Overpayment, the Executive shall promptly pay to the Company the amount of such Overpayment together with interest on such amount at the applicable Federal rate provided for in Section 1274(d) of the Code for the period commencing on the date of the Overpayment to the date of such payment by the Executive to the Company. The Executive shall make such payment to the Company as soon as administratively practicable after the Company notifies the Executive of (A) the Accounting Firm’s determination that an Overpayment was made and (B) the amount to be repaid.
(v) Nothing in this Section 7(h) is intended to violate the Sxxxxxxx-Xxxxx Act of 2002, as amended, and to the extent that any advance or repayment obligation hereunder would constitute such a violation, such obligation shall be modified so as to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void to the extent required by such Act.;
Appears in 1 contract
Additional Payments by the Company. A. If it is determined (ias hereafter provided) Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”"), is would be subject to the excise tax imposed by Section 4999 of the CodeCode (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such excise taxtax or taxes, together with any such interest or and penalties, are hereinafter hereafter collectively referred to as the “"Excise Tax”"), the Company shall pay then Executive will be entitled to Executive receive an additional payment or payments (a “"Gross-up Up Payment”") in an amount such that that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon the Payments. The Gross-up Payment attributable .
B. Subject to a particular Payment shall the provisions of clause F below, all determinations required to be made at the time such Payment is made; providedunder this Section 6(c)(ii), however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes.
(ii) Except as provided below, the determination that a Payment is subject to including whether an Excise Tax shall is payable by Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, will be made by the Company's independent certified public accountants prior to the Change in writing by a nationally recognized accounting firm Control (the "Accounting Firm"). The Company will direct the Accounting Firm to submit its written determination and detailed supporting calculations to both the Company and Executive within 15 calendar days after the date of the Change in Control or executive compensation consulting firm selected the date of Executive's termination of employment, if applicable, and any other such time or times as may be requested by the Company (or Executive. If the “Accounting Firm”)Firm determines that any Excise Tax is payable by Executive, the Company will pay the required Gross-Up Payment to Executive within five business days after receipt of such determination and calculations. Such If the Accounting Firm determines that no Excise Tax is payable by Executive, it will, at the same time as it makes such determination, furnish Executive with a written opinion that she has substantial authority not to report any Excise Tax on her federal, state, local income or other tax return. Any determination shall include by the Accounting Firm as to the amount of the Gross-Up Payment will be binding upon the Company and detailed computations thereof, including Executive. As a result of the uncertainty in the application of Section 4999 of the Code (or any assumptions used in such computations. Any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an "Underpayment"), consistent with the calculations required to be binding on made hereunder. In the event that the Company exhausts or falls to pursue its remedies pursuant to clause F below and Executive thereafter is required to make a payment of any Excise Tax, the Company or Executive may direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment will be promptly paid by the Executive. Company to, or for the benefit of, Executive within twenty days after receipt of such determination and calculations.
C. The Company and Executive shall will each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by clause B above.
D. The federal, state and local income or other tax returns filed by Executive will be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive will make an initial determination as to whether a Gross-up Payment is required and proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of her federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive's federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-up PaymentUp Payment should be reduced, Executive will within twenty days thereafter pay to the Company the amount of such reduction.
E. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by clauses B and D above will be borne by the Company. If such fees and expenses are initially advanced by Executive, the Company will reimburse Executive shall the full amount of such fees and expenses within twenty days after receipt from Executive of a statement therefor and reasonable evidence of her payment thereof.
F. Executive will notify the Company in writing of any claim by the Internal Revenue Service whichthat, if successful, would require the payment by the Company to make of a Gross-up Payment (or a Gross-up Payment in excess Up Payment. Such notification will be given as promptly as practicable but no later than 10 business days after Executive actually receives notice of that, if any, initially determined by such claim and Executive will further apprise the Accounting Firm) within 10 days Company of the receipt nature of such claim. The Company shall notify Executive claim and the date on which such claim is requested to be paid (in writing at least 10 days prior each case, to the due date of any response required with respect to such claim if it plans to contest the claimextent known by Executive). The Executive shall will not pay such claim prior to the earlier of (i) the expiration of the 1030-calendar-day period following the date on which the Executive she gives such notice to the Company and (or such shorter period ending on ii) the date that any payment of taxes, interest, penalties or additions to tax amount with respect to such claim is due)due without penalty. If the Company notifies the Executive in writing prior to the expiration of such 10-day period (regardless of whether such claim was earlier paid as contemplated by the preceding parenthetical) that it desires to contest such claim, the Executive shall: will:
(Ai) give provide the Company with any information written records or documents in her possession relating to such claim reasonably requested by the Company relating to such claim; Company;
(Bii) take such action in connection with contesting such claim as the Company shall will reasonably request in writing from time to time, including, including without limitation, limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected and paid for by the Company; ;
(Ciii) cooperate with the Company in good faith in order effectively to contest such claim; and and
(Div) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall will bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action contest and shall will indemnify and hold Executive harmlessharmless Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action.
(iii) such representation and payment of costs and expenses. Without limitation on limiting the foregoing provisions of this Section 7(h), and to the extent its actions do not unreasonably interfere with or prejudice the Executive’s disputes with the Internal Revenue Service as to other issuesclause F, the Company shall will control all proceedings taken in connection with such the contest of any claim contemplated by this clause F and, in at its reasonable discretionsole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the Internal Revenue Service taxing authority in respect of such claim (provided that Executive may participate therein at her own cost and expense) and may, at its or in their sole option, either direct the Executive to pay the tax, interest or penalties tax claimed and sxx sue for a refund or contest the claim xxaim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall will determine; provided, however, that if the Company directs the Executive to pay such claim the tax claimed and sxx sue for a refund, the Company shall wxxx advance an the amount equal to of such payment to the Executive, Executive on an interest-free basis, basis and shall will indemnify and hold the Executive harmless, on an after-tax basis, from all taxes (includingany Excise Tax or income tax, without limitationincluding interest or penalties with respect thereto, income and excise taxes), interest, penalties and additions to tax imposed with respect to such advance or with respect to any imputed income with respect to such advance, as any such amounts are incurred; and, and provided further, providedhowever, that any extension of the statute of limitations relating to payment of taxes, interest, penalties or additions to tax taxes for the taxable year of the Executive with respect to which such the contested amount is claimed to be due is limited solely to such contested amount; and. Furthermore, provided, further, that any settlement the Company's control of any such contested claim shall be reasonably acceptable to the Executive, and the Company’s control of the contest shall will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, hereunder and the Executive shall will be entitled to settle or contest, as the case may be, any other issue. issue raised by the Internal Revenue Service or any other taxing authority.
G. If, as a result after the receipt by Executive of an amount advanced by the Company’s action with respect Company pursuant to a claimclause F above, Executive receives a any refund of any amount paid by the Company with respect to such claim, Executive shall promptly pay such refund will (subject to the Company. If 's complying with the Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then the Company shall immediately pay to Executive the portion requirements of such claim, if any, which it has not previously paid to Executive.
(ivclause F above) It is possible that no Gross-Up Payment will initially be made but that a Gross-Up Payment should have been made, or that a Gross-Up Payment will initially be made in an amount that is less than what should have been made (either of such events is referred to as an “Underpayment”). It is also possible that a Gross-Up Payment will initially be made in an amount that is greater than what should have been made (an “Overpayment”). The determination of any Underpayment or Overpayment shall be made by the Accounting Firm in accordance with Subsection (ii). In the event of an Underpayment, the amount of any such Underpayment shall be paid to the Executive as an additional Gross-Up Payment. In the event of an Overpayment, the Executive shall promptly within twenty days thereafter pay to the Company the amount of such Overpayment refund (together with any interest on paid or credited thereon after any taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to clause F above, a determination is made that Executive will not be entitled to any refund with respect to such amount at claim and the applicable Federal rate provided for Company does not notify Executive in Section 1274(d) writing of the Code for the period commencing on the date of the Overpayment its intent to contest such denial or refund prior to the date expiration of 30 days after such determination, then such advance will be forgiven and will not be required to be repaid and the amount of such payment by the Executive to the Company. The Executive shall make such payment to the Company as soon as administratively practicable after the Company notifies the Executive of (A) the Accounting Firm’s determination that an Overpayment was made and (B) the amount to be repaid.
(v) Nothing in this Section 7(h) is intended to violate the Sxxxxxxx-Xxxxx Act of 2002advance will offset, as amended, and to the extent that any advance or repayment obligation hereunder would constitute such a violationthereof, such obligation shall the amount of Gross-Up Payment required to be modified so as paid pursuant to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void to the extent required by such Actthis Section 6(c)(ii).
Appears in 1 contract
Samples: Employment Agreement (Gartner Inc)
Additional Payments by the Company. A. If it is determined (ias hereafter provided) Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”"), is would be subject to the excise tax imposed by Section 4999 of the CodeCode (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such excise taxtax or taxes, together with any such interest or and penalties, are hereinafter hereafter collectively referred to as the “"Excise Tax”"), the Company shall pay then Executive will be entitled to Executive receive an additional payment or payments (a “"Gross-up Up Payment”") in an amount such that that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon the Payments. The Gross-up Payment attributable .
B. Subject to a particular Payment shall the provisions of clause F below, all determinations required to be made at the time such Payment is made; providedunder this Section 7(c)(ii), however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes.
(ii) Except as provided below, the determination that a Payment is subject to including whether an Excise Tax shall is payable by Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, will be made by the Company's independent certified public accountants prior to the Change in writing by a nationally recognized accounting firm Control (the "Accounting Firm"). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within 15 calendar days after the date of the Change in Control or executive compensation consulting firm selected the date of Executive's termination of employment, if applicable, and any other such time or times as may be requested by the Company (or Executive. If the “Accounting Firm”)Firm determines that any Excise Tax is payable by Executive, the Company will pay the required Gross-Up Payment to Executive within five business days after receipt of such determination and calculations. Such If the Accounting Firm determines that no Excise Tax is payable by Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Excise Tax on his federal, state, local income or other tax return. Any determination shall include by the Accounting Firm as to the amount of the Gross-Up Payment will be binding upon the Company and detailed computations thereof, including Executive. As a result of the uncertainty in the application of Section 4999 of the Code (or any assumptions used in such computations. Any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an "Underpayment"), consistent with the calculations required to be binding on made hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to clause F below and Executive thereafter is required to make a payment of any Excise Tax, the Company or Executive may direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment will be promptly paid by the Executive. Company to, or for the benefit of, Executive within twenty days after receipt of such determination and calculations.
C. The Company and Executive shall will each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by clause B above.
D. The federal, state and local income or other tax returns filed by Executive will be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive will make an initial determination as to whether a Gross-up Payment is required and proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive's federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-up PaymentUp Payment should be reduced, Executive will within twenty days thereafter pay to the Company the amount of such reduction.
E. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by clauses B and D above will be borne by the Company. If such fees and expenses are initially advanced by Executive, the Company will reimburse Executive shall the full amount of such fees and expenses within twenty days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof.
F. Executive will notify the Company in writing of any claim by the Internal Revenue Service whichthat, if successful, would require the payment by the Company to make of a Gross-up Payment (or a Gross-up Payment in excess Up Payment. Such notification will be given as promptly as practicable but no later than 10 business days after Executive actually receives notice of that, if any, initially determined by such claim and Executive will further apprise the Accounting Firm) within 10 days Company of the receipt nature of such claim. The Company shall notify Executive claim and the date on which such claim is requested to be paid (in writing at least 10 days prior each case, to the due date of any response required with respect to such claim if it plans to contest the claimextent known by Executive). The Executive shall will not pay such claim prior to the earlier of (i) the expiration of the 1030-calendar-day period following the date on which the Executive he gives such notice to the Company and (or such shorter period ending on ii) the date that any payment of taxes, interest, penalties or additions to tax amount with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such 10-day period (regardless of whether such claim was earlier paid as contemplated by the preceding parenthetical) that it desires to contest such claim, the Executive shall: will:
(Ai) give provide the Company with any information written records or documents in his possession relating to such claim reasonably requested by the Company relating to such claim; Company;
(Bii) take such action in connection with contesting such claim as the Company shall will reasonably request in writing from time to time, including, including without limitation, limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected by the Company; ;
(Ciii) cooperate with the Company in good faith in order effectively to contest such claim; and and
(Div) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall will bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action contest and shall will indemnify and hold Executive harmlessharmless Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action.
(iii) such representation and payment of costs and expenses. Without limitation on limiting the foregoing provisions of this Section 7(h), and to the extent its actions do not unreasonably interfere with or prejudice the Executive’s disputes with the Internal Revenue Service as to other issuesclause F, the Company shall will control all proceedings taken in connection with such the contest of any claim contemplated by this clause F and, in at its reasonable discretionsole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the Internal Revenue Service taxing authority in respect of such claim (provided that Executive may participate therein at his own cost and expense) and may, at its or in their sole option, either direct the Executive to pay the tax, interest or penalties tax claimed and sxx for sue xxx a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall will determine; provided, however, that if the Company directs the Executive to pay such claim the tax claimed and sxx for sue xxx a refund, the Company shall will advance an the amount equal to of such payment to the Executive, Executive on an interest-free basis, basis and shall will indemnify and hold the Executive harmless, on an after-tax basis, from all taxes (includingany Excise Tax or income tax, without limitationincluding interest or penalties with respect thereto, income and excise taxes), interest, penalties and additions to tax imposed with respect to such advance or with respect to any imputed income with respect to such advance, as any such amounts are incurred; and, and provided further, providedhowever, that any extension of the statute of limitations relating to payment of taxes, interest, penalties or additions to tax taxes for the taxable year of the Executive with respect to which such the contested amount is claimed to be due is limited solely to such contested amount; and. Furthermore, provided, further, that any settlement the Company's control of any such contested claim shall be reasonably acceptable to the Executive, and the Company’s control of the contest shall will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, hereunder and the Executive shall will be entitled to settle or contest, as the case may be, any other issue. issue raised by the Internal Revenue Service or any other taxing authority.
G. If, as a result after the receipt by Executive of an amount advanced by the Company’s action with respect Company pursuant to a claimclause F above, Executive receives a any refund of any amount paid by the Company with respect to such claim, Executive shall promptly pay such refund will (subject to the Company. If 's complying with the Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then the Company shall immediately pay to Executive the portion requirements of such claim, if any, which it has not previously paid to Executive.
(ivclause F above) It is possible that no Gross-Up Payment will initially be made but that a Gross-Up Payment should have been made, or that a Gross-Up Payment will initially be made in an amount that is less than what should have been made (either of such events is referred to as an “Underpayment”). It is also possible that a Gross-Up Payment will initially be made in an amount that is greater than what should have been made (an “Overpayment”). The determination of any Underpayment or Overpayment shall be made by the Accounting Firm in accordance with Subsection (ii). In the event of an Underpayment, the amount of any such Underpayment shall be paid to the Executive as an additional Gross-Up Payment. In the event of an Overpayment, the Executive shall promptly within twenty days thereafter pay to the Company the amount of such Overpayment refund (together with any interest on paid or credited thereon after any taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to clause F above, a determination is made that Executive will not be entitled to any refund with respect to such amount at claim and the applicable Federal rate provided for Company does not notify Executive in Section 1274(d) writing of the Code for the period commencing on the date of the Overpayment its intent to contest such denial or refund prior to the date expiration of 30 days after such determination, then such advance will be forgiven and will not be required to be repaid and the amount of such payment by the Executive to the Company. The Executive shall make such payment to the Company as soon as administratively practicable after the Company notifies the Executive of (A) the Accounting Firm’s determination that an Overpayment was made and (B) the amount to be repaid.
(v) Nothing in this Section 7(h) is intended to violate the Sxxxxxxx-Xxxxx Act of 2002advance will offset, as amended, and to the extent that any advance or repayment obligation hereunder would constitute such a violationthereof, such obligation shall the amount of Gross-Up Payment required to be modified so as paid pursuant to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void to the extent required by such Actthis Section 7(c)(ii).
Appears in 1 contract
Additional Payments by the Company. A. If it is determined (ias hereafter provided) Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”"), is would be subject to the excise tax imposed by Section 4999 of the CodeCode (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such excise taxtax or taxes, together with any such interest or and penalties, are hereinafter hereafter collectively referred to as the “"Excise Tax”"), the Company shall pay then Executive will be entitled to Executive receive an additional payment or payments (a “"Gross-up Up Payment”") in an amount such that that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon the Payments. The Gross-up Payment attributable .
B. Subject to a particular Payment shall the provisions of clause F below, all determinations required to be made at the time such Payment is made; providedunder this Section 7(c)(ii), however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes.
(ii) Except as provided below, the determination that a Payment is subject to including whether an Excise Tax shall is payable by Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, will be made by the Company's independent certified public accountants prior to the Change in writing by a nationally recognized accounting firm Control (the "Accounting Firm"). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within 15 calendar days after the date of the Change in Control or executive compensation consulting firm selected the date of Executive's termination of employment, if applicable, and any other such time or times as may be requested by the Company (or Executive. If the “Accounting Firm”)Firm determines that any Excise Tax is payable by Executive, the Company will pay the required Gross-Up Payment to Executive within five business days after receipt of such determination and calculations. Such If the Accounting Firm determines that no Excise Tax is payable by Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Excise Tax on his federal, state, local income or other tax return. Any determination shall include by the Accounting Firm as to the amount of the Gross-Up Payment will be binding upon the Company and detailed computations thereof, including Executive. As a result of the uncertainty in the application of Section 4999 of the Code (or any assumptions used in such computations. Any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an "Underpayment"), consistent with the calculations required to be binding on made hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to clause F below and Executive thereafter is required to make a payment of any Excise Tax, the Company or Executive may direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment will be promptly paid by the Executive. Company to, or for the benefit of, Executive within twenty days after receipt of such determination and calculations.
C. The Company and Executive shall will each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by clause B above.
D. The federal, state and local income or other tax returns filed by Executive will be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive will make an initial determination as to whether a Gross-up Payment is required and proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive's federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-up PaymentUp Payment should be reduced, Executive will within twenty days thereafter pay to the Company the amount of such reduction.
E. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by clauses B and D above will be borne by the Company. If such fees and expenses are initially advanced by Executive, the Company will reimburse Executive shall the full amount of such fees and expenses within twenty days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof.
F. Executive will notify the Company in writing of any claim by the Internal Revenue Service whichthat, if successful, would require the payment by the Company to make of a Gross-up Payment (or a Gross-up Payment in excess Up Payment. Such notification will be given as promptly as practicable but no later than 10 business days after Executive actually receives notice of that, if any, initially determined by such claim and Executive will further apprise the Accounting Firm) within 10 days Company of the receipt nature of such claim. The Company shall notify Executive claim and the date on which such claim is requested to be paid (in writing at least 10 days prior each case, to the due date of any response required with respect to such claim if it plans to contest the claimextent known by Executive). The Executive shall will not pay such claim prior to the earlier of (i) the expiration of the 1030-calendar-day period following the date on which the Executive he gives such notice to the Company and (or such shorter period ending on ii) the date that any payment of taxes, interest, penalties or additions to tax amount with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such 10-day period (regardless of whether such claim was earlier paid as contemplated by the preceding parenthetical) that it desires to contest such claim, the Executive shall: will:
(Ai) give provide the Company with any information written records or documents in his possession relating to such claim reasonably requested by the Company relating to such claim; Company;
(Bii) take such action in connection with contesting such claim as the Company shall will reasonably request in writing from time to time, including, including without limitation, limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected by the Company; ;
(Ciii) cooperate with the Company in good faith in order effectively to contest such claim; and and
(Div) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall will bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action contest and shall will indemnify and hold Executive harmlessharmless Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action.
(iii) such representation and payment of costs and expenses. Without limitation on limiting the foregoing provisions of this Section 7(h), and to the extent its actions do not unreasonably interfere with or prejudice the Executive’s disputes with the Internal Revenue Service as to other issuesclause F, the Company shall will control all proceedings taken in connection with such the contest of any claim contemplated by this clause F and, in at its reasonable discretionsole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the Internal Revenue Service taxing authority in respect of such claim (provided that Executive may participate therein at his own cost and expense) and may, at its or in their sole option, either direct the Executive to pay the tax, interest or penalties tax claimed and sxx xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall will determine; provided, however, that if the Company directs the Executive to pay such claim the tax claimed and sxx xxx for a refund, the Company shall will advance an the amount equal to of such payment to the Executive, Executive on an interest-free basis, basis and shall will indemnify and hold the Executive harmless, on an after-tax basis, from all taxes (includingany Excise Tax or income tax, without limitationincluding interest or penalties with respect thereto, income and excise taxes), interest, penalties and additions to tax imposed with respect to such advance or with respect to any imputed income with respect to such advance, as any such amounts are incurred; and, and provided further, providedhowever, that any extension of the statute of limitations relating to payment of taxes, interest, penalties or additions to tax taxes for the taxable year of the Executive with respect to which such the contested amount is claimed to be due is limited solely to such contested amount; and. Furthermore, provided, further, that any settlement the Company's control of any such contested claim shall be reasonably acceptable to the Executive, and the Company’s control of the contest shall will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, hereunder and the Executive shall will be entitled to settle or contest, as the case may be, any other issue. issue raised by the Internal Revenue Service or any other taxing authority.
G. If, as a result after the receipt by Executive of an amount advanced by the Company’s action with respect Company pursuant to a claimclause F above, Executive receives a any refund of any amount paid by the Company with respect to such claim, Executive shall promptly pay such refund will (subject to the Company. If 's complying with the Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then the Company shall immediately pay to Executive the portion requirements of such claim, if any, which it has not previously paid to Executive.
(ivclause F above) It is possible that no Gross-Up Payment will initially be made but that a Gross-Up Payment should have been made, or that a Gross-Up Payment will initially be made in an amount that is less than what should have been made (either of such events is referred to as an “Underpayment”). It is also possible that a Gross-Up Payment will initially be made in an amount that is greater than what should have been made (an “Overpayment”). The determination of any Underpayment or Overpayment shall be made by the Accounting Firm in accordance with Subsection (ii). In the event of an Underpayment, the amount of any such Underpayment shall be paid to the Executive as an additional Gross-Up Payment. In the event of an Overpayment, the Executive shall promptly within twenty days thereafter pay to the Company the amount of such Overpayment refund (together with any interest on paid or credited thereon after any taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to clause F above, a determination is made that Executive will not be entitled to any refund with respect to such amount at claim and the applicable Federal rate provided for Company does not notify Executive in Section 1274(d) writing of the Code for the period commencing on the date of the Overpayment its intent to contest such denial or refund prior to the date expiration of 30 days after such determination, then such advance will be forgiven and will not be required to be repaid and the amount of such payment by the Executive to the Company. The Executive shall make such payment to the Company as soon as administratively practicable after the Company notifies the Executive of (A) the Accounting Firm’s determination that an Overpayment was made and (B) the amount to be repaid.
(v) Nothing in this Section 7(h) is intended to violate the Sxxxxxxx-Xxxxx Act of 2002advance will offset, as amended, and to the extent that any advance or repayment obligation hereunder would constitute such a violationthereof, such obligation shall the amount of Gross-Up Payment required to be modified so as paid pursuant to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void to the extent required by such Actthis Section 7(c)(ii).
Appears in 1 contract
Samples: Employment Agreement (Gartner Inc)
Additional Payments by the Company. A. If it is determined (ias hereafter provided) Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by 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 pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), is would be subject to the excise tax imposed by Section 4999 of the CodeCode (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such excise taxtax or taxes, together with any such interest or and penalties, are hereinafter hereafter collectively referred to as the “Excise Tax”), the Company shall pay then Executive will be entitled to Executive receive an additional payment or payments (a “Gross-up Up Payment”) in an amount such that that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon the Payments. The Gross-up Payment attributable .
B. Subject to a particular Payment shall the provisions of clause F below, all determinations required to be made at the time such Payment is made; providedunder this Section 6(c)(ii), however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes.
(ii) Except as provided below, the determination that a Payment is subject to including whether an Excise Tax shall is payable by Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, will be made in writing by a nationally recognized accounting firm or executive compensation consulting firm selected by the Company Company’s independent certified public accountants prior to the Change in Control (the “Accounting Firm”). Such The Company will direct the Accounting Firm to submit its determination shall include and detailed supporting calculations to both the Company and Executive within 15 calendar days after the date of the Change in Control or the date of Executive’s termination of employment, if applicable, and any other such time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Excise Tax is payable by Executive, the Company will pay the required Gross-Up Payment to Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Excise Tax is payable by Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Excise Tax on his federal, state, local income or other tax return. Any determination by the Accounting Firm as to the amount of the Gross-Up Payment will be binding upon the Company and detailed computations thereof, including Executive. As a result of the uncertainty in the application of Section 4999 of the Code (or any assumptions used in such computations. Any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be binding on made hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to clause F below and Executive thereafter is required to make a payment of any Excise Tax, the Company or Executive may direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment will be promptly paid by the Executive. Company to, or for the benefit of, Executive within twenty days after receipt of such determination and calculations.
C. The Company and Executive shall will each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by clause B above.
D. The federal, state and local income or other tax returns filed by Executive will be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive. Executive will make an initial determination as to whether a Gross-up Payment is required and proper payment of the amount of any Excise Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive’s federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-up PaymentUp Payment should be reduced, Executive will within twenty days thereafter pay to the Company the amount of such reduction.
E. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by clauses B and D above will be borne by the Company. If such fees and expenses are initially advanced by Executive, the Company will reimburse Executive shall the full amount of such fees and expenses within twenty days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof.
F. Executive will notify the Company in writing of any claim by the Internal Revenue Service whichthat, if successful, would require the payment by the Company to make of a Gross-up Payment (or a Gross-up Payment in excess Up Payment. Such notification will be given as promptly as practicable but no later than 10 business days after Executive actually receives notice of that, if any, initially determined by such claim and Executive will further apprise the Accounting Firm) within 10 days Company of the receipt nature of such claim. The Company shall notify Executive claim and the date on which such claim is requested to be paid (in writing at least 10 days prior each case, to the due date of any response required with respect to such claim if it plans to contest the claimextent known by Executive). The Executive shall will not pay such claim prior to the earlier of (i) the expiration of the 1030-calendar-day period following the date on which the Executive he gives such notice to the Company and (or such shorter period ending on ii) the date that any payment of taxes, interest, penalties or additions to tax amount with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such 10-day period (regardless of whether such claim was earlier paid as contemplated by the preceding parenthetical) that it desires to contest such claim, the Executive shall: will:
(Ai) give provide the Company with any information written records or documents in his possession relating to such claim reasonably requested by the Company relating to such claim; Company;
(Bii) take such action in connection with contesting such claim as the Company shall will reasonably request in writing from time to time, including, including without limitation, limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected by the Company; ;
(Ciii) cooperate with the Company in good faith in order effectively to contest such claim; and and
(Div) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall will bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action contest and shall will indemnify and hold Executive harmlessharmless Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action.
(iii) such representation and payment of costs and expenses. Without limitation on limiting the foregoing provisions of this Section 7(h), and to the extent its actions do not unreasonably interfere with or prejudice the Executive’s disputes with the Internal Revenue Service as to other issuesclause F, the Company shall will control all proceedings taken in connection with such the contest of any claim contemplated by this clause F and, in at its reasonable discretionsole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the Internal Revenue Service taxing authority in respect of such claim (provided that Executive may participate therein at his own cost and expense) and may, at its or in their sole option, either direct the Executive to pay the tax, interest or penalties tax claimed and sxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall will determine; provided, however, that if the Company directs the Executive to pay such claim the tax claimed and sxx for a refund, the Company shall will advance an the amount equal to of such payment to the Executive, Executive on an interest-free basis, basis and shall will indemnify and hold the Executive harmless, on an after-tax basis, from all taxes (includingany Excise Tax or income tax, without limitationincluding interest or penalties with respect thereto, income and excise taxes), interest, penalties and additions to tax imposed with respect to such advance or with respect to any imputed income with respect to such advance, as any such amounts are incurred; and, and provided further, providedhowever, that any extension of the statute of limitations relating to payment of taxes, interest, penalties or additions to tax taxes for the taxable year of the Executive with respect to which such the contested amount is claimed to be due is limited solely to such contested amount; and. Furthermore, provided, further, that any settlement of any claim shall be reasonably acceptable to the Executive, and the Company’s control of the contest shall any such contested claim will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, hereunder and the Executive shall will be entitled to settle or contest, as the case may be, any other issue. issue raised by the Internal Revenue Service or any other taxing authority.
G. If, as a result after the receipt by Executive of an amount advanced by the Company’s action with respect Company pursuant to a claimclause F above, Executive receives a any refund of any amount paid by the Company with respect to such claim, Executive shall promptly pay such refund will (subject to the Company. If ’s complying with the Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then the Company shall immediately pay to Executive the portion requirements of such claim, if any, which it has not previously paid to Executive.
(ivclause F above) It is possible that no Gross-Up Payment will initially be made but that a Gross-Up Payment should have been made, or that a Gross-Up Payment will initially be made in an amount that is less than what should have been made (either of such events is referred to as an “Underpayment”). It is also possible that a Gross-Up Payment will initially be made in an amount that is greater than what should have been made (an “Overpayment”). The determination of any Underpayment or Overpayment shall be made by the Accounting Firm in accordance with Subsection (ii). In the event of an Underpayment, the amount of any such Underpayment shall be paid to the Executive as an additional Gross-Up Payment. In the event of an Overpayment, the Executive shall promptly within twenty days thereafter pay to the Company the amount of such Overpayment refund (together with any interest on paid or credited thereon after any taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to clause F above, a determination is made that Executive will not be entitled to any refund with respect to such amount at claim and the applicable Federal rate provided for Company does not notify Executive in Section 1274(d) writing of the Code for the period commencing on the date of the Overpayment its intent to contest such denial or refund prior to the date expiration of 30 days after such determination, then such advance will be forgiven and will not be required to be repaid and the amount of such payment by the Executive to the Company. The Executive shall make such payment to the Company as soon as administratively practicable after the Company notifies the Executive of (A) the Accounting Firm’s determination that an Overpayment was made and (B) the amount to be repaid.
(v) Nothing in this Section 7(h) is intended to violate the Sxxxxxxx-Xxxxx Act of 2002advance will offset, as amended, and to the extent that any advance or repayment obligation hereunder would constitute such a violationthereof, such obligation shall the amount of Gross-Up Payment required to be modified so as paid pursuant to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void to the extent required by such Actthis Section 6(c)(ii).
Appears in 1 contract
Samples: Employment Agreement (Gartner Inc)
