Common use of Gross-Up Payments Clause in Contracts

Gross-Up Payments. Anything in this Agreement to the contrary notwithstanding, in the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing (a "Payment"), excluding, however, any stock option or right in respect of restricted stock, would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the "Excise Tax"), then the Employee shall be entitled to receive an additional payment or payments (collectively, a "Gross-Up Payment"); provided, however, that no Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The procedural

Gross-Up Payments. Anything in this Agreement to the contrary ----------------- notwithstanding, in the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates to or for the benefit of the EmployeeExecutive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing (a "Payment"), excluding, however, any stock option or right in respect of restricted stock, would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the "Excise Tax"), then the Employee Executive shall be entitled to receive an additional payment or payments (collectively, a "Gross-Up Payment"); provided, however, that no ------------------ Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment by the Employee Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Up Payment, the Employee Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The proceduralprocedural provisions relating to Gross-Up Payments set forth in Annex A hereto are hereby incorporated herein by this reference.

Gross-Up Payments. Anything in this Agreement to the contrary notwithstanding, in (i) In the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than or the Gross-Up Payments provided for herein) value of any benefit received or distribution to be received by Employer the Executive in connection with the Executive's Termination or any contingent upon a Change of its affiliates to or for the benefit Control of the Employee, Company (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the "Agreement Payments") or otherwise pursuant to or by reason of any other agreement, policy, plan, program arrangement or arrangementagreement of the Company, its successors, any person whose actions result in a Change of Control of the Company or the lapse or termination of any restriction on, or the vesting or exercisability of person affiliated with any of them (or which, as a result of the foregoing completion of the transactions causing a Change of Control, will become affiliated with any of them) (a "PaymentOther Payments" and, together with the Agreement Payments, the "Payments"), excluding, however, any stock option or right in respect of restricted stock, ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto)comparable federal, by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxesexcise tax, together with any such interest and penalties, being hereafter are hereinafter collectively referred to as the "Excise Tax"), then as determined as provided below, the Employee Company shall be entitled pay to receive the Executive an additional payment or payments amount (collectively, a the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax on Agreement Payments and Other Payments and any federal, state and local income tax and Excise Tax upon the payment provided for by this Subsection IV(e)(i); provided, howeverand any interest, penalties or additions to tax payable by the Executive with respect thereto shall be equal to the total present value of the Agreement Payments and Other Payments at the time such Payments are to be made. The intent of the parties is that no the Company shall be solely responsible for and shall pay, any Excise Tax on any Payments and Gross-Up Payment shall be made with respect to the Excise Taxand any income and employment taxes (including, if anywithout limitation, penalties and interest) imposed upon (i) on any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment Payments as well as any loss of deduction caused by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The procedural.

Gross-Up Payments. Anything in this Agreement to the contrary ----------------- notwithstanding, in the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer the Company or any of its affiliates to or for the benefit of the EmployeeExecutive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing (a "Payment"), excluding, however, any stock option or right in respect of restricted stock, would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employerthe Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the "Excise Tax"), then the Employee Executive shall be entitled to receive an additional payment or payments (collectively, a "Gross-Up Payment"); provided, however, that no Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment by the Employee Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Up Payment, the Employee Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The proceduralprocedural provisions relating to Gross-Up Payments that are set forth in Appendix A hereto are hereby incorporated herein by this reference.

Gross-Up Payments. Anything in this Agreement to the contrary notwithstanding, in In the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates the Company to or for the benefit of the EmployeeExecutive, including the acceleration of vesting of the Option or the issuance of shares upon its exercise, (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant otherwise, but determined without regard to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing additional payments required under this Section 4.4) (a "Payment"), excluding, however, any stock option or right in respect of restricted stock, ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties are incurred by the Employee with respect to such excise tax (such tax or taxesexcise tax, together with any such interest and penalties, being hereafter are hereinafter collectively referred to as the "Excise Tax"), then the Employee shall be entitled to receive an additional payment or payments (collectively, a "Gross-Up Payment"); provided, however, that no Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including an including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. All determinations required to be made under this Section 4.4, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm as may be designated by the Employee (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Employee within 30 business days of the receipt of notice from the Employee that there has been a Payment, or such earlier time as is requested by the Company or the Employee. The proceduralIn the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 4.4, shall be paid by the Company to the Employee within ten days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and the Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee.

Gross-Up Payments. Anything If, following a Change in this Agreement to the contrary notwithstandingControl, in the event that a severance payment is made under this Agreement and it shall be determined by the Accounting Firm (as hereafter providedcontemplated by Section 5(b) below) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer the Company or any of its affiliates to or for the benefit of the EmployeeExecutive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including, without limitation, any stock option, stock right or similar right, or the lapse or termination of any restriction on, on or the vesting or exercisability of any of the foregoing (a "“Payment"”), excluding, however, any stock option or right in would be an “excess parachute payment” with respect of restricted stock, to which the Executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "“contingent on a change in ownership or control" ” of Employerthe Company, within the meaning of Section 280G of the Code (or any successor provision thereto) Code, or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the "“Excise Tax"”), then: If the aggregate “present value” of the “parachute payments,” as such terms are defined by Section 280G of the Code (together, the “Total Parachute Payments”), does not exceed the product of (i) three times the Executive’s “base amount,” within the meaning of Section 280G of the Code, multiplied by (ii) 110% (the “Trigger Amount”), then the Employee payments and benefits to be made or provided under this Agreement to the Executive shall be reduced (reducing or eliminating the earliest payments first) by the least amount necessary such that no Payment shall be subject to the Excise Tax. If the Total Parachute Payments exceed the Trigger Amount, then the Executive shall be entitled to receive an additional payment or payments (collectively, a "“Gross-Up Payment"); provided, however, that no Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i”). The Gross-Up Payment shall be in an amount such that, after payment by the Employee Executive of all taxes (including including, but not limited to, any federal, state or local income taxes, Excise Taxes, FICA and Medicare withholding taxes and interest or penalties imposed with respect to such taxes), including an any Excise Tax imposed upon the Gross-Up Payment, the Employee Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The procedural.

Gross-Up Payments. Anything in this Agreement to the contrary notwithstanding, in In the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates the Company to or for the benefit of the EmployeeExecutive, including the acceleration of vesting of the Options or the issuance of shares upon its exercise, (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant otherwise, but determined without regard to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing additional payments required under this Section 4.5) (a "Payment"), excluding, however, any stock option or right in respect of restricted stock, ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties are incurred by the Employee with respect to such excise tax (such tax or taxesexcise tax, together with any such interest and penalties, being hereafter are hereinafter collectively referred to as the "Excise Tax"), then the Employee shall be entitled to receive an additional payment or payments (collectively, a "Gross-Up Payment"); provided, however, that no Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including an including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. All determinations required to be made under this Section 4.5, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm as may be designated by the Employee (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Employee within 30 business days of the receipt of notice from the Employee that there has been a Payment, or such earlier time as is requested by the Company or the Employee. The proceduralIn the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 4.5, shall be paid by the Company to the Employee within five days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and the Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee.

Gross-Up Payments. Anything in this Agreement to the contrary notwithstanding, in (a) In the event that a severance payment it is made under this Agreement and it shall be determined (pursuant to clause (b) below) or finally determined (as hereafter provideddefined in clause (c)(iii) below) that any payment (payment, distribution, transfer, benefit or other than the Gross-Up Payments provided for herein) or distribution by event with respect to Employer or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of its affiliates them, and including any benefit plan of any of them), to or for the benefit of the Employee or Employee's dependents, whether paid heirs or payable or distributed or distributable beneficiaries pursuant to the terms of the Employment Agreement (but determined without regard to any additional payments required under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing Exhibit A) (each a "Payment" and collectively the "), excluding, however, any stock option Payments") is or right in respect of restricted stock, would be was subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or ), and/or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor comparable provision thereto) or to any similar tax imposed by of state or local lawincome tax law (collectively, "Section 4999"), or any interest interest, penalty or penalties addition to tax is or was incurred by Employee with respect to such excise tax (such tax or taxesexcise tax, together with any such interest and penaltiesinterest, being hereafter penalty or addition to tax, hereinafter collectively referred to as the "Excise Tax"), then then, within ten (10) days after such determination or final determination, as the case may be, Employer shall pay to Employee shall be entitled to receive an additional cash payment or payments (collectively, a hereinafter referred to as the "Gross-Gross Up Payment"); provided) in an amount such that after payment by Employee of all taxes, howeverinterest, that no Gross-Up Payment shall be made penalties and additions to tax imposed with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Gross Up Payment shall be in an amount such that(including, after payment by the Employee of all without limitation, any income and excise taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Gross Up Payment), the Employee retains an amount of the Gross-Gross Up Payment equal to the Excise Tax imposed upon such Payment or Payments and the Gross Up Payment. The proceduralThis provision is intended to put Employee in the same position as Employee would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.