Common use of Certain Adjustment Payments Clause in Contracts

Certain Adjustment Payments. For purposes of determining the Gross Up, the Executive shall be deemed to pay the federal income tax at the highest marginal rate of taxation (currently 39.6%) in the calendar year in which the payment to which the Gross Up applies is to be made and state and local income taxes (if any) at the highest marginal rate of taxation in the state and locality of Executive's residence on the last day of such calendar year. The determination of whether such Excise Tax is payable and the amount thereof shall be made upon the opinion of tax counsel selected by the Company and reasonably acceptable to the Executive ("Tax Counsel"), applying the rules set forth in the next sentence. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of the Excise Tax: (1) all Payments shall be treated as "parachute payments," within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments," within the meaning of Section 280G(b)(1) of the Code, shall be treated as subject to the Excise Tax, unless in the opinion of Tax Counsel such Payments (other than Covered Payments), in whole or in part, do not constitute such parachute payments, or such excess parachute payments, in whole or in part, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the "base amount," within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; and (2) the value of any non-cash or deferred payments or benefits shall be determined by a "big five" (or equivalent) international accounting firm selected by the Company and reasonably acceptable to the Executive in accordance with the principles of Section 280G(d)(3) and (4) of the Code. The Gross Up, if any, that is due under this Section 13 shall be paid to the Executive in cash in a lump sum within thirty (30) days after the date on which the amount thereof has been determined or is reasonably determinable by Tax Counsel, and, in any event, not later than thirty (30) days following termination of the Executive's employment under this Agreement, provided that if the amount of the Gross Up cannot be finally determined at or before such time, the amount paid shall be the estimated full amount of the Gross Up as reasonably determined by Tax Counsel in good faith in accordance with the principles described in this Section 13. The Executive shall be entitled to retain his own advisor to verify, and consult with Tax Counsel in connection with, any determination or computation related to the Excise Tax and/or Gross Up. If Tax Counsel's opinion is not finally accepted by the Internal Revenue Service upon audit or otherwise, or such an estimated Gross Up is paid, then appropriate adjustments shall be computed (with additional Gross Up, if applicable) by such Tax Counsel based upon the final amount of the Excise Tax so determined; any additional amount due the Executive as a result of such adjustment shall be paid to the Executive by the Company in cash in a lump sum within thirty (30) days of such computation (including any interest or penalties owed by the Executive to the Federal government by reason of any such underpayment), or any amount due the Company as a result of such adjustment shall be paid to the Company by the Executive in cash in a lump sum within thirty (30) days of such computation. All fees, costs and expenses of Tax Counsel and any accounting firm or other advisor retained in accordance with this Section 13 shall be borne solely by the Company.

Certain Adjustment Payments. For purposes of determining the Gross Up, the Executive shall be deemed to pay the federal income tax at the highest marginal rate of taxation (currently 39.6%) in the calendar year in which the payment to which the Gross Up applies is to be made and state and local income taxes (if any) at the highest marginal rate of taxation in the state and locality of Executive's residence on the last day of such calendar year. The determination of whether such Excise Tax is payable and the amount thereof shall be made upon the opinion of tax counsel selected by the Company and reasonably acceptable to the Executive ("Tax Counsel"), applying the rules set forth in the next sentence. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of the Excise Tax: (1) all Payments shall be treated as "parachute payments," within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments," within the meaning of Section 280G(b)(1) of the Code, shall be treated as subject to the Excise Tax, unless in the opinion of Tax Counsel such Payments (other than Covered Payments), in whole or in part, do not constitute such parachute payments, or such excess parachute payments, in whole or in part, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the "base amount," within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; and (2) the value of any non-cash or deferred payments or benefits shall be determined by a "big five" (or equivalent) international accounting firm selected by the Company and reasonably acceptable to the Executive in accordance with the principles of Section 280G(d)(3) and (4) of the Code. The Gross Up, if any, that is due under this Section 13 shall be paid to the Executive in cash in a lump sum within thirty (30) days after the date on which the amount thereof has been determined or is reasonably determinable by Tax Counsel, and, in any event, not later than thirty (30) days following termination of the Executive's employment under this Agreement, provided that if the amount of the Gross Up cannot be finally determined at or before such time, the amount paid shall be the estimated full amount of the Gross Up as reasonably determined by Tax Counsel in good faith in accordance with the principles described in this Section 13. The Executive shall be entitled to retain his her own advisor to verify, and consult with Tax Counsel in connection with, any determination or computation related to the Excise Tax and/or Gross Up. If Tax Counsel's opinion is not finally accepted by the Internal Revenue Service upon audit or otherwise, or such an estimated Gross Up is paid, then appropriate adjustments shall be computed (with additional Gross Up, if applicable) by such Tax Counsel based upon the final amount of the Excise Tax so determined; any additional amount due the Executive as a result of such adjustment shall be paid to the Executive by the Company in cash in a lump sum within thirty (30) days of such computation (including any interest or penalties owed by the Executive to the Federal government by reason of any such underpayment), or any amount due the Company as a result of such adjustment shall be paid to the Company by the Executive in cash in a lump sum within thirty (30) days of such computation. All fees, costs and expenses of Tax Counsel and any accounting firm or other advisor retained in accordance with this Section 13 shall be borne solely by the Company.

Certain Adjustment Payments. For purposes of determining the Gross Up, the Executive shall be deemed to pay the federal income tax at the highest marginal rate of taxation (currently 39.6%) in the calendar year in which the payment to which the Gross Up applies is to be made and state and local income taxes (if any) at the highest marginal rate of taxation in the state and locality of Executive's residence on the last day of such calendar year. The determination of whether such Excise Tax is payable and the amount thereof shall be made upon the opinion of tax counsel selected by the Company and reasonably acceptable to the Executive ("Tax Counsel"), applying the rules set forth in the next sentence. For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of the Excise Tax: (1) all Payments shall be treated as "parachute payments," within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments," within the meaning of Section 280G(b)(1) of the Code, shall be treated as subject to the Excise Tax, unless in the opinion of Tax Counsel such Payments (other than Covered Payments), in whole or in part, do not constitute such parachute payments, or such excess parachute payments, in whole or in part, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the "base amount," within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; and (2) the value of any non-cash or deferred payments or benefits shall be determined by a "big five" (or equivalent) international accounting firm selected by the Company and reasonably acceptable to the Executive in accordance with the principles of Section 280G(d)(3) and (4) of the Code. The Gross Up, if any, that is due under this Section 13 shall be paid to the Executive in cash in a lump sum within thirty (30) days after the date on which the amount thereof has been determined or is reasonably determinable by Tax Counsel, and, in any event, not later than thirty (30) days following termination of the Executive's employment under this Agreement, ; provided that if the amount of the Gross Up cannot be finally determined at or before such time, the amount paid shall be the estimated full amount of the Gross Up as reasonably determined by Tax Counsel in good faith in accordance with the principles described in this Section 13. The Executive shall be entitled to retain his own advisor to verify, and consult with Tax Counsel in connection with, any determination or computation related to the Excise Tax and/or Gross Up. If Tax Counsel's opinion is not finally accepted by the Internal Revenue Service upon audit or otherwise, or such an estimated Gross Up is paid, then appropriate adjustments shall be computed (with additional Gross Up, if applicable) by such Tax Counsel based upon the final amount of the Excise Tax so determined; any additional amount due the Executive as a result of such adjustment shall be paid to the Executive by the Company in cash in a lump sum within thirty (30) days of such computation (including any interest or penalties owed by the Executive to the Federal government by reason of any such underpayment), or any amount due the Company as a result of such adjustment shall be paid to the Company by the Executive in cash in a lump sum within thirty (30) days of such computation. All fees, costs and expenses of Tax Counsel and any accounting firm or other advisor retained in accordance with this Section 13 shall be borne solely by the Company.