Common use of Golden Parachute Provisions Clause in Contracts

Golden Parachute Provisions. If Executive becomes entitled to the payments, benefits and equity acceleration described in Sections 3 and 4 and such payments and benefits, together with any other payments or transfers of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall pay an additional amount (the “Gross-Up Payment”) to Executive. The Gross-Up Payment shall be equal to the amount necessary so that the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on the Gross-Up Payment, shall be equal to the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptions: (i) Executive shall be treated as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of Executive’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is finally determined.

Golden Parachute Provisions. If Executive Employee becomes entitled to the payments, benefits and equity acceleration described in Sections 3 and 4 2.1 through 2.4 and such payments and benefits, together with any other payments or transfers of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall pay an additional amount (the “Gross-Up Payment”) to ExecutiveEmployee. The Gross-Up Payment shall be equal to the amount necessary so that the net amount retained by ExecutiveEmployee, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on the Gross-Up Payment, shall be equal to the net amount Executive Employee would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptions: (i) Executive Employee shall be treated as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive Employee shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of ExecutiveEmployee’s residence as of the effective date of ExecutiveEmployee’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of ExecutiveEmployee’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive Employee within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of ExecutiveEmployee’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive Employee within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive Employee no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive Employee shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by ExecutiveEmployee, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is finally determined.

Golden Parachute Provisions. If Executive Employee becomes entitled to the payments, benefits and equity acceleration described in Sections 3 and 4 2.1 through 2.4 and such payments and benefits, together with any other payments or transfers of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall pay an additional amount (the “Gross-Up Payment”) to ExecutiveEmployee. The Gross-Up Payment shall be equal to the amount necessary so that the net amount retained by ExecutiveEmployee, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on the Gross-Up Payment, shall be equal to the net amount Executive Employee would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptions: (i) Executive Employee shall be treated as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive Employee shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of ExecutiveEmployee’s residence as of the effective date of ExecutiveEmployee’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of ExecutiveEmployee’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive Employee within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of ExecutiveEmployee’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive Employee within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive Employee no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive Employee shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by ExecutiveEmployee, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) } of the Code) at the time that the amount of the excess is finally determined.

Golden Parachute Provisions. If Executive becomes entitled Notwithstanding any provision in this Agreement to the paymentscontrary (other than Sections 8(b)(ii), benefits 19 and equity acceleration 23 which will apply under the circumstances described in Sections 3 those sections and 4 and such payments and benefits, together with any other payments or transfers of property (collectively the “Severance Payments”below), if, as of the date of the Change of Control, the Change Entity (after consulting with an independent accounting or compensation consulting company) ascertains that the compensation and benefits provided to the Executive pursuant to or under this Agreement (other than the Welfare Benefit Replacement Cost as defined in Section 8(b)(ii) or the amounts described in Section 19 and/or 23, either alone or when combined with other compensation and benefits received by the Executive, would constitute “parachute” payments under "parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (or the “Code”)regulations adopted thereunder, then the Company shall pay an additional amount compensation and benefits payable pursuant to or under this Agreement (other than the “Gross-Up Payment”Welfare Benefit Replacement Cost and the amounts described in Sections 19 and 23) to Executive. The Gross-Up Payment shall be equal reduced to the amount extent necessary so that no portion thereof shall be subject to the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, Code ("Excise Taxes"). The Executive or any successor statute then in effect (other party entitled to receive the “Excise Tax”)compensation or benefits hereunder may request a determination as to whether the compensation or benefit would constitute a parachute payment and, and after also subtracting all federalif requested, state or local income tax, FICA tax and Excise Tax on the Gross-Up Payment, such determination shall be equal to made by an independent accounting or compensation consulting company (other than the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount entity described in the first sentence of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel this section) selected by the CompanyChange Entity and approved by the party requesting such determination, who shall apply the following assumptions: (i) fees of which will be borne solely by the Change Entity. In the event that any reduction is required under this Section 10, the Executive may select which compensation and benefits shall be treated as paying federal income taxes at reduced and the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall Executive's decision will be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of Executive’s termination or resignationbinding. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time Internal Revenue Service subsequently and finally decides that the amount of compensation and benefits (including after the reduced reduction applied under this Section 10) will generate Excise Taxes on compensation and benefits (other than the Welfare Benefit Replacement Cost and those amounts described in Sections 19 and 23), the Executive will immediately remit an additional amount to the Change Entity equal to the difference between the amount paid (other than the Welfare Benefit Replacement Cost and those amounts described in Sections 19 and 23) and the amount paid (other than the Welfare Benefit Replacement Cost and those amounts described in Sections 19 and 23). Also, the Executive agrees to promptly notify the Change Entity of an assessment or inquiry from the Internal Revenue Service relating to payments under this Agreement that would, if made final, result in imposition of an Excise Tax is finally determined and also agrees to cooperate with the portion Change Entity in resisting any Excise Tax assessment. However, the Change Entity will have complete control over resolution of any claim by the Gross-Up Payment attributable to Internal Revenue Service that reduction might generate an Excise Tax (plus the portion of the Gross-Up Payment attributable although it will have no dispositive power over any other tax matter that may be subject to the Excise Tax, FICA tax same audit) and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount Corporation will bear all costs associated with that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is finally determinedeffort.