Certain Additional Payments by Company. Notwithstanding anything to the contrary in this Agreement, if any payment, distribution or provision of a benefit by Company to or for the benefit of Executive, whether paid or payable, distributed or distributable or provided or to be provided pursuant to the terms of this Agreement or otherwise (a "Payment"), would be subject to an excise or other special additional tax that would not have been imposed absent such Payment (including, without limitation, any excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended), or any interest or penalties with respect to such excise or other additional tax (such excise or other additional tax, together with any such interest or penalties, are hereinafter collectively referred to as the "Excise Tax"), 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 income taxes and Excise Taxes imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment (taking into account any similar gross-up payments to Executive under any stock incentive or other benefit plan or program of Company) equal to the Excise Tax imposed upon the Payments. 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 Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten business days after the receipt of such claim. Company shall notify Executive in writing at least ten business days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, 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 Company's action. If, as a result of Company's action with respect to a claim, Executive r...
Certain Additional Payments by Company. 17.1 Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by Company or any of its affiliates to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (any such payments or distributions being individually referred to herein as a “Payment,” and any two or more of such payments or distributions being referred to herein as “Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the “Excise Tax”), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a “Gross-Up Payment” and any two or more of such additional payments being referred to herein as “Gross-Up Payments”) in an amount such that after payment by Employee of all taxes (as defined in paragraph 17.11) imposed upon the Gross-Up Payment, Employee retains an amount of such Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
17.2 Subject to the provisions of paragraph 17.3 through 17.11, any determination (individually, a “Determination”) required to be made under this paragraph 17, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Company’s expense, by nationally recognized tax counsel mutually acceptable to Company and Employee (“Tax Counsel”). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Company and Employee within 15 business days of the termination of Employee’s employment, if applicable, or such other time or times as is reasonably requested by Company or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a “Dispute”) within 15 business days after delivery of Tax Counsel’s opinion with respect to such ...
Certain Additional Payments by Company. The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for Executive’s services to Company and shall not constitute “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code. In the event that the severance benefits or any other benefits or payments to which Executive is entitled pursuant to this Agreement or otherwise (collectively, the “Total Benefits”), will be subject to the excise tax imposed pursuant to Section 4999 of the Code (“Excise Tax”), Company shall pay to Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income taxes, Excise Tax, and FICA and Medicare withholding taxes upon the payment provided for by this Section, will be equal to the Total Benefits. For purposes of this Section, Executive will be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Excise Tax is (or would be) payable and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s residence on the Date of Termination, net of the reduction in federal income taxes that could be obtained from deduction of such state and local taxes (calculated by assuming that any reduction under Section 68 of the Internal Revenue Code in the amount of itemized deductions allowable to Executive applies first to reduce the amount of such state and local income taxes that would otherwise be deductible by Executive). In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Executive’s employment, Executive shall repay to Company, at the time the amount of such reduction in Excise Tax is fully determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the Gross-Up Payment being repaid by Executive to the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Ex...
Certain Additional Payments by Company. Notwithstanding anything in this Agreement to the contrary, in the event that Employee becomes entitled to any of the payments or benefits provided under this Section 5 as a result of Employee's resignation for Good Reason pursuant to Section 1.b.(iv) hereinabove or Employee's termination without cause following a Change of Control and such payments or benefits result in Employee being subject to the golden parachute excise tax imposed by Section 4999 of the Internal Revenue Code, the Company shall make such additional payment as will make executive whole for such tax obligation, as set forth in Appendix B, which is incorporated herein by reference.
Certain Additional Payments by Company. In the event that any payments under this Agreement or any other compensation, benefit or other amounts payable from the Company for the benefit of the Executive are subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (including any applicable interest and penalties, the “Excise Tax”), no such payment (“Parachute Payment”) shall be reduced (except for required tax withholdings) and the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld from payments made to the Executive or the date such Excise Tax becomes due and payable by the Executive, an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive (after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate (as defined below) upon the payment provided for by this Section 6 and Excise Tax upon the payment provided for by this Section 6), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. A Tax counsel chosen by the Company’s independent auditors, provided such person is reasonably acceptable to the Executive (“Tax Counsel”), shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax, and Tax Counsel shall promptly notify the Executive of its determination. The Company and the Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company’s reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, the Executive shall repay to the Company promptly following the date that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (without interest). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall pay the Executive an additional amount with respect to the Gross-Up Payment in...
Certain Additional Payments by Company. If
(a) the Company or the Company's accountants determine that the payments or benefits called for under this Agreement or any other payments or benefits made available to Executive would constitute parachute payments (within the meaning of Section 280G(b) of the Internal Revenue Code of 1986, as amended (the "Code")) that would result in Executive being subject to an excise tax under Section 4999 of the Code ("Payments"), and
(b) the Payments equal or exceed 115% of the Safe Harbor Amount (as defined in this paragraph 4), then the Company shall make a Gross-Up Payment (as defined in this paragraph 4) to or on behalf of Executive as and when such determination(s) and assessment(s), as appropriate, are made; provided Executive takes such action (other than waiving his right to any Payments) as the Company reasonably requests under the circumstances to mitigate or challenge such tax. If the Company or the Company's accountants determine that the Payments exceed 100% but are less than 115% of the Safe Harbor Amount, then some or all of the Payments (as determined by the Company in its absolute discretion) shall be reduced to the extent the Company deems necessary so that such Payments are no greater than the Safe Harbor Amount.
Certain Additional Payments by Company. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by 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"), would be subject to the excise tax imposed by Section 4999 of the Internal 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"), Company shall pay to Executive an additional payment (a "Gross-up Payment") in an amount such that after payment by Executive of all state and federal taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax and any federal or state income taxes imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed
Certain Additional Payments by Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment (as defined below) would be subject to the Excise Tax, then
(i) Payments due to Executive shall be reduced by the amount necessary so that such Payments are not subject to the Excise Tax, but in no event shall Payments be reduced by more than twenty percent (20%);
(ii) In the event it is determined that any part of the Payments after such Payments have been reduced by twenty percent (20%) as provided in subsection (i) above would be subject to the Excise Tax (“Excise Tax Portion”), then Executive shall be entitled to receive an additional payment (the “Tax Gross Up Payment”) in an amount such that, after payment by Executive of all taxes (and any interest and penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Tax Gross-Up Payment, Executive retains an amount of the Tax Gross-Up Payment equal to the Excise Tax imposed upon the Excise Tax Portion.
(iii) For purposes of this Section 8, “Excise Tax” shall mean the excise tax imposed by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax; the term “Payment” shall mean any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise.
Certain Additional Payments by Company. In the event that any -------------------------------------- payments under this Agreement or any other compensation, benefit or other amounts payable from the Company for the benefit of the Executive are subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld from payments made to the Executive or the date such Excise Tax becomes due and payable by the Executive, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive (after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate (as defined below) upon the payment provided for by this Section 6 and Excise Tax upon the payment provided for by this Section 6), GUEZ EMPLOYMENT AGREEMENT
Certain Additional Payments by Company. (a) If the Company or the Company's accountants determine that the payments or benefits called for under this Agreement or any other payments or benefits made available to Executive would constitute parachute payments (within the meaning of Section 280G(b) of the Internal Revenue Code of 1986, as amended (the "Code")) that would result in Executive being subject to an excise tax under Section 4999 of the Code ("Payments"), and
(b) If the Payments equal or exceed 115% of the Safe Harbor Amount (as defined in this paragraph 4), then the Company shall make a Gross-Up Payment (as defined in this paragraph 4) to or on behalf of Executive as and when such determination(s) and assessment(s), as appropriate, are made; provided Executive takes such action (other than waiving his or her right to any Payments) as the Company reasonably requests under the circumstances to mitigate or challenge such tax. If the Company or the Company's accountants determine that the Payments exceed 100% but are less than 115% of the Safe Harbor Amount, then some or all of the Payments (as determined by the Company in its absolute discretion) shall be reduced to the extent the Company deems necessary so that such Payments are no greater than the Safe Harbor Amount. The "Safe Harbor Amount" for purposes of this Agreement shall mean 2.99 times Executive's base amount (within the meaning of Section 280G(b) of the Code). A "Gross-Up Payment" for purposes of this Agreement shall mean a payment to or on behalf of Executive that shall be sufficient to pay (i) any excise tax on the Payments under Section 4999 of the Code, (ii) any federal, state and local income tax and social security or other employment tax, and any excise tax under Section 4999 of the Code, on the amount described in clause (i) and the amounts described in this clause (ii), and (iii) any interest or penalties assessed by the Internal Revenue Service on Executive if such interest or penalties are attributable to the Company's failure to comply with its obligations under this paragraph 4 or applicable law. Any determination under this paragraph 4 by the Company or the Company's accountants shall be made in accordance with Section 280G of the Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest...
