Common use of Equalization Payment Clause in Contracts

Equalization Payment. If upon or following a Change of Control the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any similar or successor tax (the "Excise Tax") applies, because of the Change of Control, to any payments, benefits and/or amounts received by Executive as severance benefits or otherwise, including, without limitation, any amounts received or deemed received, within the meaning of any provision of the Code, by Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to outstanding grants or awards to Executive under any of the Company's equity incentive plans or agreements (collectively, the "Total Payments"), the Company shall pay in cash to Executive or for Executive's benefit as provided below an additional amount or amounts (the "Gross-Up Payment(s)") such that the net amount retained by Executive after the deduction or payment of any Excise Tax on such Total Payments so received and any Federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment(s) provided for herein shall be equal to such Total Payments so received had they not been subject to the Excise Tax. Such Gross-Up Payment(s) shall be made by the Company to Executive or applicable taxing authority on behalf of Executive as soon as practicable following the receipt or deemed receipt of any portion of such Total Payments so received, and may be satisfied by the Company making a payment or payments on Executive's account in lieu of withholding for tax purposes but in all events shall be made within thirty (30) days of the receipt or deemed receipt by Executive of any portion of such Total Payments.

Equalization Payment. If upon or following a Change of Control in Control, the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any similar or successor tax (the "“Excise Tax"”) applies, solely because of the Change of in Control, to any payments, benefits and/or amounts received by the Executive as severance benefits Severance Benefits or otherwise, including, without limitation, any fees, costs and expenses paid under Article 9 of this Agreement and/or any amounts received or deemed received, within the meaning of any provision of the Code, by the Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to outstanding grants or awards to the Executive under any of the Company's equity ’s incentive plans or agreements (collectivelyplans, including without limitation, the "Total Payments")2001 Long-Term Incentive Stock Plan, the 1993 Long Term Incentive Stock Plan, the 1987 Long Term Incentive Plan and the 1981 Long-Term Incentive Plan, the Company shall pay in cash to the Executive or for the Executive's ’s benefit as provided below an additional amount or amounts (the "“Gross-Up Payment(s)"”) such that the net amount retained by the Executive after the deduction or payment of any Excise Tax on such Total Payments payments, benefits and/or amounts so received and any Federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Payment(s) provided for herein by this Section 6.1 shall be equal to such Total Payments payments, benefits and/or amounts so received had they not been subject to the Excise Tax. Such Gross-Up Payment(spayment(s) shall be made by the Company to the Executive or applicable taxing authority on behalf of the Executive as soon as practicable following the receipt or deemed receipt of any portion of such Total Payments payments, benefits and/or amounts so received, and may be satisfied by the Company making a payment or payments on Executive's ’s account in lieu of withholding for tax purposes but in all events shall be made within thirty (30) days of the receipt or deemed receipt by the Executive of any portion of such Total Paymentspayment, benefit and/or amount.

Equalization Payment. If upon or following a Change of Control in Control, the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any similar or successor tax (the "Excise Tax") applies, solely because of the Change of in Control, to any payments, benefits and/or amounts received by the Executive as severance benefits Severance Benefits or otherwise, including, without limitation, any fees, costs and expenses paid under Article 7 of this Agreement and/or any amounts received or deemed received, within the meaning of any provision of the Code, by the Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to outstanding grants or awards to the Executive under any of the Company's equity incentive plans or agreements (collectivelyplans, including without limitation, the "Total Payments")1993 Long Term Incentive Stock Plan, the 1987 Long Term Incentive Plan and the 1981 Long-Term Incentive Plan, the Company shall pay to the Executive in cash to Executive or for Executive's benefit as provided below an additional amount or amounts (the "Gross-Up Payment(s)") such that the net amount retained by the Executive after the deduction or payment of any Excise Tax on such Total Payments payments, benefits and/or amounts so received and any Federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Payment(s) provided for herein by this Section 4.1 shall be equal to such Total Payments payments, benefits and/or amounts so received had they not been subject to the Excise Tax. Such Gross-Up Payment(spayment(s) shall be made by the Company to Executive or applicable taxing authority on behalf of the Executive as soon as practicable following the receipt or deemed receipt of any portion of such Total Payments payments, benefits and/or amounts so received, and may be satisfied by the Company making a payment or payments on Executive's account in lieu of withholding for tax purposes but in all events shall be made within thirty (30) days of the receipt or deemed receipt by the Executive of any portion of such Total Paymentspayment, benefit and/or amount.

Equalization Payment. If upon or following a Change of Control in Control, the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any similar or successor tax (the "“Excise Tax"”) applies, because applies as a result of the Change of in Control, to any payments, benefits and/or amounts received by the Executive as severance benefits Severance Benefits or otherwise, including, without limitation, any fees, costs and expenses paid under Article 8 of this Agreement and/or any amounts received or deemed received, within the meaning of any provision of the Code, by the Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to outstanding stock options and other grants or awards to the Executive under any of the Company's equity ’s incentive plans or agreements (collectivelyplans, including without limitation, the "Amended and Restated Diagnostic Products Corporation 1990 Stock Option Plan and the Amended and Restated Diagnostic Products Corporation 1997 Stock Option Plan (such payments, benefits, and/or amounts hereinafter referred to as “Total Payments"”), the Company shall pay in cash to the Executive or for the Executive's ’s benefit as provided below an additional amount or amounts (the "“Gross-Up Payment(s)"”) such that the net amount retained by the Executive after the deduction or payment of any Excise Tax on such Total Payments payments, benefits and/or amounts so received and any Federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Payment(s) provided for herein by this Section 5.1 shall be equal to such Total Payments payments, benefits and/or amounts so received had they not been subject to the Excise Tax. Such Gross-Up Payment(spayment(s) shall be made by the Company to the Executive or applicable taxing authority on behalf of the Executive as soon as practicable following the receipt or deemed receipt of any portion of such Total Payments payments, benefits and/or amounts so received, and may be satisfied by the Company making a payment or payments on Executive's ’s account in lieu of withholding for tax purposes but in all events shall be made within thirty (30) days of the receipt or deemed receipt by the Executive of any portion of such Total Paymentspayment, benefit and/or amount.

Equalization Payment. If To the extent that the Executive is subject to taxation under the laws of the United States, then if upon or following a Change of Control in Control, the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any similar or successor tax (the "“Excise Tax"”) applies, solely because of the Change of in Control, to any payments, benefits and/or amounts received by the Executive as severance benefits Severance Benefits or otherwise, including, without limitation, any amounts received or deemed receivedfees, within the meaning costs and expenses paid under Article 7 of any provision of the Code, by Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to outstanding grants or awards to Executive under any of the Company's equity incentive plans or agreements (collectively, the "Total Payments")this Agreement, the Company shall pay in cash to the Executive or for the Executive's ’s benefit as provided below an additional amount or amounts (the "“Gross-Up Payment(s)"”) such that the net amount retained by the Executive after the deduction or payment of any Excise Tax on such Total Payments payments, benefits and/or amounts so received and any Federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Payment(s) provided for herein by this Section 5.1 shall be equal to such Total Payments payments, benefits and/or amounts so received had they not been subject to the Excise Tax. Such Gross-Up Payment(spayment(s) shall be made by the Company to the Executive or applicable taxing authority on behalf of the Executive as soon as practicable following the receipt or deemed receipt of any portion of such Total Payments payments, benefits and/or amounts so received, and may be satisfied by the Company making a payment or payments on Executive's ’s account in lieu of withholding for tax purposes but in all events shall be made within thirty (30) days of the receipt or deemed receipt by the Executive of any portion of such Total Paymentspayment, benefit and/or amount.

Equalization Payment. If upon or following a Change of Control in Control, the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any similar or successor tax (the "“Excise Tax"”) applies, solely because of the Change of in Control, to any payments, benefits and/or amounts received by the Executive as severance benefits Severance Benefits or otherwise, including, including without limitation, any fees, costs and expenses paid under this Agreement and/or any amounts received or deemed received, within the meaning of any provision of the Code, by the Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to outstanding grants or awards to the Executive under any of the Company's equity ’s incentive plans or agreements (collectivelyplans, including without limitation, the "Total Payments")1993 Long Term Incentive Stock Plan, the 1987 Long Term Incentive Plan and the 1981 Long-Term Incentive Plan, the Company shall pay to the Executive in cash to Executive or for Executive's benefit as provided below an additional amount or amounts (the "“Gross-Up Payment(s)"”)) such that the net amount retained by the Executive after the deduction or payment of any Excise Tax on such Total Payments payments, benefits and/or amounts so received and any Federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Payment(s) provided for herein by this Section shall be equal to such Total Payments payments, benefits and/or amounts so received had they not been subject to the Excise Tax. Such Gross-Up Payment(spayment(s) provided for by this Section shall be equal to such payments, benefits and/or amounts so received had they not been subject to the Excise Tax. Such payment(s) shall be made by the Company to Executive or applicable taxing authority on behalf of the Executive as soon as practicable following the receipt or deemed receipt of any portion of such Total Payments payments, benefits and/or amounts so received, and may be satisfied by the Company making a payment or payments on Executive's ’s account in lieu of withholding for tax purposes but in all events shall be made within thirty (30) days of the receipt or deemed receipt by the Executive of any portion such payment, benefit and/or amount. Tax Computation. For purposes of determining whether any payments, benefits and/or amounts, including amounts paid as Severance Benefits, will be subject to Excise Tax, and the amount of any such Total Payments.Excise Tax:

Equalization Payment. If upon or following a Change of Control CIC (as defined below) the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”), or any similar or successor tax (the "“Excise Tax"”) applies, because of the Change of ControlCIC, to any payments, benefits and/or amounts received by Executive as severance benefits or otherwise, including, without limitation, any amounts received or deemed received, within the meaning of any provision of the Code, by Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to outstanding grants or awards to Executive under any of the Company's equity ’s incentive plans or agreements (collectively, the "“Total Payments"”), the Company Roxio shall pay in cash to Executive or for Executive's ’s benefit as provided below an additional amount or amounts (the "“Gross-Up Payment(s)"”) such that the net amount retained by Executive after the deduction or payment of any Excise Tax on such Total Payments so received and any Federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment(s) provided for herein by this Exhibit A shall be equal to such Total Payments so received had they not been subject to the Excise Tax. Such Gross-Up Payment(s) shall be made by the Company Roxio to Executive or applicable taxing authority on behalf of Executive as soon as practicable following the receipt or deemed receipt of any portion of such Total Payments so received, and may be satisfied by the Company Roxio making a payment or payments on Executive's ’s account in lieu of withholding for tax purposes but in all events shall be made within thirty (30) days of the receipt or deemed receipt by Executive of any portion of such Total Payments. For purposes of this Exhibit A, “CIC” means the occurrence, either during the Term or, if the Executive’s employment by Roxio terminates during the Term, at any time following such termination of employment, of either (a) a change in the ownership or effective control of Roxio (within the meaning of Section 280G of the Code), or (b) or a change in the ownership of a substantial portion of the assets of Roxio (within the meaning of Section 280G of the Code).

Equalization Payment. If upon or following a Change of Control in Control, the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any similar or successor tax (the "“Excise Tax"”) applies, solely because of the Change of in Control, to any payments, benefits and/or amounts received by the Executive from the Company or any of its subsidiaries as severance benefits or otherwise, including, including without limitation, any fees, costs and expenses paid under this Agreement and/or any amounts received or deemed received, within the meaning of any provision of the Code, by the Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to outstanding grants or awards to the Executive under any of the Company's equity ’s incentive plans or agreements (collectivelyplans, including without limitation, the "Total Payments")2001 Long Term incentive Stock Plan, the 1993 Long Term Incentive Stock Plan, the 1987 Long Term Incentive Plan and the 1981 Long-Term Incentive Plan, the Company shall pay to the Executive in cash to Executive or for Executive's benefit as provided below an additional amount or amounts (the "“Gross-Up Payment(s)"”)) such that the net amount retained by the Executive after the deduction or payment of any Excise Tax on such Total Payments payments, benefits and/or amounts so received and any Federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Payment(s) provided for herein by this Section shall be equal to such Total Payments payments, benefits and/or amounts so received had they not been subject to the Excise Tax. Such Gross-Up Payment(spayment(s) provided for by this Section shall be equal to such payments, benefits and/or amounts so received had they not been subject to the Excise Tax. Such payment(s) shall be made by the Company to Executive or applicable taxing authority on behalf of the Executive as soon as practicable following the receipt or deemed receipt of any portion of such Total Payments payments, benefits and/or amounts so received, and may be satisfied by the Company making a payment or payments on Executive's ’s account in lieu of withholding for tax purposes but in all events shall be made within thirty (30) days of the receipt or deemed receipt by the Executive of any portion of such Total Paymentspayment, benefit and/or amount.

Equalization Payment. If To the extent that the Executive is subject to taxation under the laws of the United States, then if upon or following a Change of Control in Control, the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any similar or successor tax (the "Excise TaxEXCISE TAX") applies, solely because of the Change of in Control, to any payments, benefits and/or amounts received by the Executive as severance benefits Severance Benefits or otherwise, including, without limitation, any amounts received or deemed receivedfees, within the meaning costs and expenses paid under Article 7 of any provision of the Code, by Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to outstanding grants or awards to Executive under any of the Company's equity incentive plans or agreements (collectively, the "Total Payments")this Agreement, the Company shall pay in cash to the Executive or for the Executive's benefit as provided below an additional amount or amounts (the "GrossGROSS-Up Payment(sUP PAYMENT(s)") such that the net amount retained by the Executive after the deduction or payment of any Excise Tax on such Total Payments payments, benefits and/or amounts so received and any Federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Payment(s) provided for herein by this Section 5.1 shall be equal to such Total Payments payments, benefits and/or amounts so received had they not been subject to the Excise Tax. Such Gross-Up Payment(spayment(s) shall be made by the Company to the Executive or applicable taxing authority on behalf of the Executive as soon as practicable following the receipt or deemed receipt of any portion of such Total Payments payments, benefits and/or amounts so received, and may be satisfied by the Company making a payment or payments on Executive's account in lieu of withholding for tax purposes but in all events shall be made within thirty (30) days of the receipt or deemed receipt by the Executive of any portion of such Total Paymentspayment, benefit and/or amount.