Common use of Determination of Gross-Up Clause in Contracts

Determination of Gross-Up. (A) Except as provided in Section 13(b)(iii), the determination that a Payment is subject to an Excise Tax shall be made in writing by the principal certified public accounting firm then retained by the Company to audit its annual financial statements (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 Executive. (B) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made. Such highest marginal rate shall take into account the loss of itemized deductions by Executive and shall also include Executive's share of the hospital insurance portion of FICA 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 his or her Qualifying Termination Event, net of the maximum reduction in Federal income taxes that could be obtained from the deduction of such state and local taxes.

Determination of Gross-Up. (Aa) Except as provided in Section 13(b)(iii)1.3, the determination that a Payment is subject to an Excise Tax shall be made in writing by the principal certified public a nationally recognized accounting firm then retained or executive compensation consulting firm selected by the Company to audit its annual financial statements (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. (Bb) For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal individual income taxation in the calendar year in which the Gross-Up Payment is to be made. Such highest marginal rate shall take into account the loss of itemized deductions by the Executive and shall also include the Executive's ’s share of the hospital insurance portion of FICA and state and local income taxes at the highest marginal rate of individual income taxation in the state and locality of the Executive's ’s residence on the date of his or her Qualifying Termination Eventthat the Payment is made, net of the maximum reduction in Federal income taxes that could be obtained from the deduction of such state and local taxes.

Determination of Gross-Up. (Aa) Except as provided in Section 13(b)(iii)1.3, the determination that a Payment is subject to an Excise Tax shall be made in writing by the principal certified public a nationally recognized accounting firm then retained or executive compensation consulting firm selected by the Company to audit its annual financial statements (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. (Bb) For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal individual income taxation in the calendar year in which the Gross-Up Payment is to be made. Such highest marginal rate shall take into account the loss of itemized deductions by the Executive and shall also include the Executive's share of the hospital insurance portion of FICA and state and local income taxes at the highest marginal rate of individual income taxation in the state and locality of the Executive's residence on the date of his or her Qualifying Termination Eventthat the Payment is made, net of the maximum reduction in Federal income taxes that could be obtained from the deduction of such state and local taxes.

Determination of Gross-Up. (Aa) Except as provided in Section 13(b)(iii)1.3, the determination that a Payment is subject to an Excise Tax shall be made in writing by the principal certified public accounting firm then retained by the Company MSC to audit its annual financial statements (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 MSC and ExecutiveXxxxxx. (Bb) For purposes of determining the amount of the Gross-Up Payment, Executive Xxxxxx shall be deemed to pay Federal income taxes at the highest marginal rate of Federal individual income taxation in the calendar year in which the Gross-Up Payment is to be made. Such highest marginal rate shall take into account the loss of itemized deductions by Executive Xxxxxx and shall also include Executive's Xxxxxx’x share of the hospital insurance portion of FICA and state and local income taxes at the highest marginal rate of individual income taxation in the state and locality of Executive's Xxxxxx’x residence on the date of his or her Qualifying Termination Eventthat the Payment is made, net of the maximum reduction in Federal income taxes that could be obtained from the deduction of such state and local taxes.

Determination of Gross-Up. (Aa) Except as provided in Section 13(b)(iii)1.3, the determination that a Payment is subject to an Excise Tax shall be made in writing by the principal certified public accounting firm then retained by the Company to audit its annual financial statements (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. (Bb) For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal individual income taxation in the calendar year in which the Gross-Up Payment is to be made. Such highest marginal rate shall take into account the loss of itemized deductions by the Executive and shall also include the Executive's ’s share of the hospital insurance portion of FICA and state and local income taxes at the highest marginal rate of individual income taxation in the state and locality of the Executive's ’s residence on the date of his or her Qualifying Termination Eventthat the Payment is made, net of the maximum reduction in Federal income taxes that could be obtained from the deduction of such state and local taxes.

Determination of Gross-Up. (Aa) Except as provided in Section 13(b)(iii)1.3, the determination that a Payment is subject to an Excise Tax shall be made in writing by the principal certified public accounting firm then retained by the Company Corporation to audit its annual financial statements (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 Corporation and the Executive. (Bb) For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal individual income taxation in the calendar year in which the Gross-Up Payment is to be made. Such highest marginal rate shall take into account the loss of itemized deductions by the Executive and shall also include the Executive's ’s share of the hospital insurance portion of FICA and state and local income taxes at the highest marginal rate of individual income taxation in the state and locality of the Executive's ’s residence on the date of his or her Qualifying Termination Eventthat the Payment is made, net of the maximum reduction in Federal income taxes that could be obtained from the deduction of such state and local taxes.

Determination of Gross-Up. (Aa) Except as provided in Section 13(b)(iii)3, the determination that a Payment is (or, if no reduction were made pursuant to Section 1(b), would be) subject to an Excise Tax Tax, and whether a Gross-Up Payment or reduction pursuant to Section 1(b) is required in the circumstances, shall be made in writing by the principal certified public a nationally recognized accounting firm then retained or executive compensation consulting firm selected by the Company to audit its annual financial statements Corporation (the "“Accounting Firm"”). Such If no reduction is required pursuant to Section 1(b), such determination shall include the amount of the Gross-Up Payment and Payment. The Accounting Firm’s determination shall include detailed computations thereof, including any assumptions used in such computations. Any determination by the Accounting Firm will be binding on the Company Corporation and the Executive. (Bb) For purposes of determining the amount of the any Gross-Up Payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal individual income taxation in the calendar year in which the Gross-Up Payment is to be made. Such highest marginal rate shall take into account the loss of itemized deductions by the Executive and shall also include the Executive's ’s share of the hospital insurance portion of FICA and state and local income taxes at the highest marginal rate of individual income taxation in the state and locality of the Executive's ’s residence on the date of his or her Qualifying Termination Eventthat the Payment is made, net of the maximum reduction in Federal income taxes that could be obtained from the deduction of such state and local taxes.

Determination of Gross-Up. (Aa) Except as provided in Section 13(b)(iii)3, the determination that a Payment the Protected Severance is subject to an Excise Tax shall be made in writing by the principal certified public accounting firm then retained by the Company Wendy’s to audit its annual financial statements (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 Wendy’s and the Company and Executive. (Bb) For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal individual income taxation in the calendar year in which the Gross-Up Payment is to be made. Such highest marginal rate shall take into account the loss of itemized deductions by the Executive and shall also include the Executive's ’s share of the hospital insurance portion of FICA and state and local income taxes at the highest marginal rate of individual income taxation in the state and locality of the Executive's ’s residence on the date of his or her Qualifying Termination Eventthat the Protected Severance is made, net of the maximum reduction in Federal income taxes that could be obtained from the deduction of such state and local taxes.