Common use of Adjusted Gross Up Payment and Additional Gross Up Payment Clause in Contracts

Adjusted Gross Up Payment and Additional Gross Up Payment. In the event that any Payments would be subject to excise tax under Section 4999 of the Code (such excise tax and any penalties and interest collectively, the "Penalty Tax"), the Company shall pay to the Employee in cash an additional amount equal to the Adjusted Gross Up Payment. The "Adjusted Gross Up Payment" shall be an amount such that after payment by the Employee of all federal, state, local, employment and medicare taxes thereon (and any penalties and interest with respect thereto), the Employee retains on an after tax basis a portion of such amount equal to the aggregate of 100% of the Penalty Tax imposed upon the Payment and 100% of the Penalty Tax imposed upon the Adjusted Gross Up Payment. For purposes of determining the amount of the Adjusted Gross Up Payment, the value of any non-cash benefits and deferred payments or benefits subject to the Penalty Tax shall be determined by the Company's independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code. The Adjusted Gross Up Payment less required tax withholding shall be paid by the Company to the Employee on the earlier of (i) the date the Company and/or any of its subsidiaries is required to withhold tax with respect to any Payment or (ii) the date any Penalty Tax is required to be paid by the Employee. In the event that, after the Adjusted Gross Up Payment is made, the Employee becomes entitled to receive a refund of any portion of the Penalty Tax, the Employee shall promptly pay to the Company 100% of such Penalty Tax refund attributable to the Payment (together with 100% of any interest paid or credited thereon by the Internal Revenue Service) and 100% of the Penalty Tax refund attributable to the Adjusted Gross Up Payment (together with 100% of any interest paid or credited thereon by the Internal Revenue Service). As a result of the uncertainty regarding the application of Section 4999 of the Code, it is possible 2 NEXT PAGE that the Internal Revenue Service may assert that the Penalty Tax due is in excess of the amount of the anticipated Penalty Tax used in calculating the Adjusted Gross Up Payment (such excess amount is hereafter referred to as the "Underpayment"). In such event, the Company shall pay to the Employee, in immediately available funds, at the time the Underpayment is assessed or otherwise determined, an additional amount equal to the Additional Gross Up Payment. The "Additional Gross Up Payment" shall be an amount such that after payment by the Employee of all federal, state, local, employment and medicare taxes thereon (and any penalties and interest with respect thereto), the Employee retains on an after tax basis a portion of such amount equal to the aggregate of (i) 100% of the portion of the Underpayment attributable to the Payment, (ii) 100% of the portion of the Underpayment attributable to the Adjusted Gross Up Payment and (iii) 100% of the Penalty Tax imposed on the Additional Gross Up Payment. Notwithstanding the foregoing, in the event the Employee experiences a Termination for Cause or a Voluntary Termination, then in that event, (a) if such termination occurs prior to the payment to the Employee of any Adjusted Gross Up Payment, then the Employee shall not be entitled to receive any Adjusted Gross Up Payment or Additional Gross Up Payment or (b) if such termination occurs after an Adjusted Gross Up Payment has been made to the Employee, then the Employee shall remit to the Company within five days after such termination the full amount of the Adjusted Gross Up Payment and Additional Gross Up Payments theretofor paid to the Employee and the Employee shall not be entitled to receive any other payments pursuant to this Section 2. However, if it is later determined that the Employee's Termination for Cause was improper, then the Employee shall be entitled to receive the Adjusted Gross Up Payment and Additional Gross Up Payment, together with any actual consequential and incidental damages arising from the delay in his receipt of such payments.

Adjusted Gross Up Payment and Additional Gross Up Payment. In the event that any Payments would be subject to excise tax under Section 4999 of the Code (such excise tax and any penalties and interest collectively, the "“Penalty Tax"”), the Company shall pay to the Employee in cash an additional amount equal to the Adjusted Gross Up Payment. The "“Adjusted Gross Up Payment" ” shall be an amount such that after payment by the Employee of all federal, state, local, employment and medicare taxes thereon (and any penalties and interest with respect thereto), the Employee retains on an after tax basis a portion of such amount equal to the aggregate of 100% of the Penalty Tax imposed upon the Payment and 100% of the Penalty Tax imposed upon the Adjusted Gross Up Payment. For purposes of determining the amount of the Adjusted Gross Up Payment, the value of any non-cash benefits and deferred payments or benefits subject to the Penalty Tax shall be determined by the Company's independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code. The Adjusted Gross Up Payment less required tax withholding shall be paid by the Company to the Employee on the earlier of (i) the date the Company and/or any of its subsidiaries is required to withhold tax with respect to any Payment or (ii) the date any Penalty Tax is required to be paid by the Employee. In the event that, after the Adjusted Gross Up Payment is made, the Employee becomes entitled to receive a refund of any portion of the Penalty Tax, the Employee shall promptly pay to the Company 100% of such Penalty Tax refund attributable to the Payment (together with 100% of any interest paid or credited thereon by the Internal Revenue Service) and 100% of the Penalty Tax refund attributable to the Adjusted Gross Up Payment (together with 100% of any interest paid or credited thereon by the Internal Revenue Service). As a result of the uncertainty regarding the application of Section 4999 of the Code, it is possible 2 NEXT PAGE that the Internal Revenue Service may assert that the Penalty Tax due is in excess of the amount of the anticipated Penalty Tax used in calculating the Adjusted Gross Up Payment (such excess amount is hereafter referred to as the "“Underpayment"”). In such event, the Company shall pay to the Employee, in immediately available funds, at the time the Underpayment is assessed or otherwise determined, an additional amount equal to the Additional Gross Up Payment. The "“Additional Gross Up Payment" ” shall be an amount such that after payment by the Employee of all federal, state, local, employment and medicare Medicare taxes thereon (and any penalties and interest with respect thereto), the Employee retains on an after tax basis a portion of such amount equal to the aggregate of (i) 100% of the portion of the Underpayment attributable to the Payment, (ii) 100% of the portion of the Underpayment attributable to the Adjusted Gross Up Payment and (iii) 100% of the Penalty Tax imposed on the Additional Gross Up Payment. Notwithstanding the foregoing, in the event the Employee experiences a Termination for Cause or a Voluntary Termination, then in that event, (a) if such termination occurs prior to the payment to the Employee of any Adjusted Gross Up Payment, then the Employee shall not be entitled to receive any Adjusted Gross Up Payment or Additional Gross Up Payment or (b) if such termination occurs after an Adjusted Gross Up Payment has been made to the Employee, then the Employee shall remit to the Company within five days after such termination the full amount of the Adjusted Gross Up Payment and Additional Gross Up Payments theretofor paid to the Employee and the Employee shall not be entitled to receive any other payments pursuant to this Section 2. However, if it is later determined that the Employee's Termination for Cause was improper, then the Employee shall be entitled to receive the Adjusted Gross Up Payment and Additional Gross Up Payment, together with any actual consequential and incidental damages arising from the delay in his receipt of such payments.

Adjusted Gross Up Payment and Additional Gross Up Payment. In the event that any Payments would be subject to excise tax under Section 4999 of the Code (such excise tax and any penalties and interest collectively, the "Penalty Tax"), the Company shall pay to the Employee in cash an additional amount equal to the Adjusted Gross Up Payment. The "Adjusted Gross Up Payment" shall be an amount such that after payment by the Employee of all federal, state, local, employment and medicare taxes thereon (and any penalties and interest with respect thereto), the Employee retains on an after tax basis a portion of such amount equal to the aggregate of 100% of the Penalty Tax imposed upon the Payment and 100% of the Penalty Tax imposed upon the Adjusted Gross Up Payment. For purposes of determining the amount of the Adjusted Gross Up Payment, the value of any non-cash benefits and deferred payments or benefits subject to the Penalty Tax shall be determined by the Company's independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code. The Adjusted Gross Up Payment less required tax withholding shall be paid by the Company to the Employee on the earlier of (i) the date the Company and/or any of its subsidiaries is required to withhold tax with respect to any Payment or (ii) the date any Penalty Tax is required to be paid by the Employee. In the event that, after the Adjusted Gross Up Payment is made, the Employee becomes entitled to receive a refund of any portion of the Penalty Tax, the Employee shall promptly pay to the Company 100% of such Penalty Tax refund attributable to the Payment (together with 100% of any interest paid or credited thereon by the Internal Revenue Service) and 100% of the Penalty Tax refund attributable to the Adjusted Gross Up Payment (together with 100% of any interest paid or credited thereon by the Internal Revenue Service). As a result of the uncertainty regarding the application of Section 4999 of the Code, it is possible 2 NEXT PAGE that the Internal Revenue Service may assert that the Penalty Tax due is in excess of the amount of the 2 NEXT PAGE anticipated Penalty Tax used in calculating the Adjusted Gross Up Payment (such excess amount is hereafter referred to as the "Underpayment"). In such event, the Company shall pay to the Employee, in immediately available funds, at the time the Underpayment is assessed or otherwise determined, an additional amount equal to the Additional Gross Up Payment. The "Additional Gross Up Payment" shall be an amount such that after payment by the Employee of all federal, state, local, employment and medicare taxes thereon (and any penalties and interest with respect thereto), the Employee retains on an after tax basis a portion of such amount equal to the aggregate of (i) 100% of the portion of the Underpayment attributable to the Payment, (ii) 100% of the portion of the Underpayment attributable to the Adjusted Gross Up Payment and (iii) 100% of the Penalty Tax imposed on the Additional Gross Up Payment. Notwithstanding the foregoing, in the event the Employee experiences a Termination for Cause or a Voluntary Termination, then in that event, (a) if such termination occurs prior to the payment to the Employee of any Adjusted Gross Up Payment, then the Employee shall not be entitled to receive any Adjusted Gross Up Payment or Additional Gross Up Payment or (b) if such termination occurs after an Adjusted Gross Up Payment has been made to the Employee, then the Employee shall remit to the Company within five days after such termination the full amount of the Adjusted Gross Up Payment and Additional Gross Up Payments theretofor paid to the Employee and the Employee shall not be entitled to receive any other payments pursuant to this Section 2. However, if it is later determined that the Employee's Termination for Cause was improper, then the Employee shall be entitled to receive the Adjusted Gross Up Payment and Additional Gross Up Payment, together with any actual consequential and incidental damages arising from the delay in his receipt of such payments.

Adjusted Gross Up Payment and Additional Gross Up Payment. In the event that any Payments would be subject to excise tax under Section 4999 of the Code (such excise tax and any penalties and interest collectively, the "“Penalty Tax"”), the Company shall pay to the Employee in cash an additional amount equal to the Adjusted Gross Up Payment. The "“Adjusted Gross Up Payment" ” shall be an amount such that after payment by the Employee of all federal, state, local, employment and medicare taxes thereon (and any penalties and interest with respect thereto), the Employee retains on an after tax basis a portion of such amount equal to the aggregate of 100% of the Penalty Tax imposed upon the Payment and 100% of the Penalty Tax imposed upon the Adjusted Gross Up Payment. For purposes of determining the amount of the Adjusted Gross Up Payment, the value of any non-cash benefits and deferred payments or benefits subject to the Penalty Tax shall be determined by the Company's independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code. The Adjusted Gross Up Payment less required tax withholding shall be paid by the Company to the Employee on the earlier of (i) the date the Company and/or any of its subsidiaries is required to withhold tax with respect to any Payment or (ii) the date any Penalty Tax is required to be paid by the Employee. In the event that, after the Adjusted Gross Up Payment is made, the Employee becomes entitled to receive a refund of any portion of the Penalty Tax, the Employee shall promptly pay to the Company 100% of such Penalty Tax refund attributable to the Payment (together with 100% of any interest paid or credited thereon by the Internal Revenue Service) and 100% of the Penalty Tax refund attributable to the Adjusted Gross Up Payment (together with 100% of any interest paid or credited thereon by the Internal Revenue Service). As a result of the uncertainty regarding the application of Section 4999 of the Code, it is possible 2 NEXT PAGE that the Internal Revenue Service may assert that the Penalty Tax due is in excess of the amount of the anticipated Penalty Tax used in calculating the Adjusted Gross Up Payment (such excess amount is hereafter referred to as the "“Underpayment"”). In such event, the Company shall pay to the Employee, in immediately available funds, at the time the Underpayment is assessed or otherwise determined, an additional amount equal to the Additional Gross Up Payment. The "“Additional Gross Up Payment" ” shall be an amount such that after payment by the Employee of all federal, state, local, employment and medicare taxes thereon (and any penalties and interest with respect thereto), the Employee retains on an after tax basis a portion of such amount equal to the aggregate of (i) 100% of the portion of the Underpayment attributable to the Payment, (ii) 100% of the portion of the Underpayment attributable to the Adjusted Gross Up Payment and (iii) 100% of the Penalty Tax imposed on the Additional Gross Up Payment. Notwithstanding the foregoing, in the event the Employee experiences a Termination for Cause or a Voluntary Termination, in either case during the Term and prior to or within one year after a Change in Control, then in that event, (a) if such termination occurs prior to the payment to the Employee of any Adjusted Gross Up Payment, then the Employee shall not be entitled to receive any Adjusted Gross Up Payment or Additional Gross Up Payment or (b) if such termination occurs after an Adjusted Gross Up Payment has been made to the Employee, then the Employee shall remit to the Company within five days after such termination the full amount of the Adjusted Gross Up Payment and Additional Gross Up Payments theretofor thereto for paid to the Employee and the Employee shall not be entitled to receive any other payments pursuant to this Section 2. However, if it is later determined that the Employee's ’s Termination for Cause was improper, then the Employee shall be entitled to receive the Adjusted Gross Up Payment and Additional Gross Up Payment, together with any actual consequential and incidental damages arising from the delay in his receipt of such payments.

Adjusted Gross Up Payment and Additional Gross Up Payment. In the event that any Payments would be subject to excise tax under Section 4999 of the Code (such excise tax and any penalties and interest collectively, the "Penalty Tax"), the Company shall pay to the Employee in cash an additional amount equal to the Adjusted Gross Up Payment. The "Adjusted Gross Up Payment" shall be an amount such that after payment by the Employee of all federal, state, local, employment and medicare taxes thereon (and any penalties and interest with respect thereto), the Employee retains on an after tax basis a portion of such amount equal to the aggregate of 100% of the Penalty Tax imposed upon the Payment and 100% of the Penalty Tax imposed upon the Adjusted Gross Up Payment. For purposes of determining the amount of the Adjusted Gross Up Payment, the value of any non-cash benefits and deferred payments or benefits subject to the Penalty Tax shall be determined by the Company's independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code. The Adjusted Gross Up Payment less required tax withholding shall be paid by the Company to the Employee on the earlier of (i) the date the Company and/or any of its subsidiaries is required to withhold tax with respect to any Payment or (ii) the date any Penalty Tax is required to be paid by the Employee. In the event that, after the Adjusted Gross Up Payment is made, the Employee becomes entitled to receive a refund of any portion of the Penalty Tax, the Employee shall promptly pay to the Company 100% of such Penalty Tax refund attributable to the Payment (together with 100% of any interest paid or credited thereon by the Internal Revenue Service) and 100% of the Penalty Tax refund attributable to the Adjusted Gross Up Payment (together with 100% of any interest paid or credited thereon by the Internal Revenue Service). As a result of the uncertainty regarding the application of Section 4999 of the Code, it is possible 2 NEXT PAGE that the Internal Revenue 2 NEXT PAGE Service may assert that the Penalty Tax due is in excess of the amount of the anticipated Penalty Tax used in calculating the Adjusted Gross Up Payment (such excess amount is hereafter referred to as the "Underpayment"). In such event, the Company shall pay to the Employee, in immediately available funds, at the time the Underpayment is assessed or otherwise determined, an additional amount equal to the Additional Gross Up Payment. The "Additional Gross Up Payment" shall be an amount such that after payment by the Employee of all federal, state, local, employment and medicare taxes thereon (and any penalties and interest with respect thereto), the Employee retains on an after tax basis a portion of such amount equal to the aggregate of (i) 100% of the portion of the Underpayment attributable to the Payment, (ii) 100% of the portion of the Underpayment attributable to the Adjusted Gross Up Payment and (iii) 100% of the Penalty Tax imposed on the Additional Gross Up Payment. Notwithstanding the foregoing, in the event the Employee experiences a Termination for Cause or a Voluntary Termination, then in that event, (a) if such termination occurs prior to the payment to the Employee of any Adjusted Gross Up Payment, then the Employee shall not be entitled to receive any Adjusted Gross Up Payment or Additional Gross Up Payment or (b) if such termination occurs after an Adjusted Gross Up Payment has been made to the Employee, then the Employee shall remit to the Company within five days after such termination the full amount of the Adjusted Gross Up Payment and Additional Gross Up Payments theretofor paid to the Employee and the Employee shall not be entitled to receive any other payments pursuant to this Section 2. However, if it is later determined that the Employee's Termination for Cause was improper, then the Employee shall be entitled to receive the Adjusted Gross Up Payment and Additional Gross Up Payment, together with any actual consequential and incidental damages arising from the delay in his receipt of such payments.