Common use of Parachute Payment Gross-Up Clause in Contracts

Parachute Payment Gross-Up. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the "Excise Tax"), Company shall pay to Executive an additional payment (a "Gross-up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company's action. If, as a result of Company's action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company If Company fails to timely notify Executive whether it will contest such claim, or if Company determines not to contest such claim, Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payment Gross-Up. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the "Excise Tax"), Company shall pay to Executive an additional payment (a "Gross-up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company's action. If, as a result of Company's action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company Company. If Company fails to timely notify Executive whether it will contest such claim, or if Company determines not to contest such claim, Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payment Gross-Up. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the "Excise Tax"), Company shall pay to Executive an additional payment (a "Gross-up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company shall make an initial determination as to whether a The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is required and made; provided, however, that in no event shall the amount of any such Gross-up PaymentPayment be made later than the end of Executive's taxable year next following Executive's taxable year in which Executive remits the related taxes. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company's action. If, as a result of Company's action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company Company. If Company fails to timely notify Executive whether it will contest such claim, or if Company determines not to contest such claim, Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive. All determinations required to be made under this Section 4.5, including, without limitation, 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 the independent public accounting firm used by Company immediately prior to the Change in Control for purposes of preparing Company's audited financial statements. However, in the event such accounting firm is also serving as an accountant or auditor for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder.

Parachute Payment Gross-Up. Notwithstanding anything to the contrary in this Agreement, in the event that If any payment or distribution by benefit Executive would receive from the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (would constitute a "Payment"), parachute payment that would be subject Executive to the an excise tax imposed by ("Excise Tax") under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any interest or penalties with respect successor provision), Executive shall be entitled to such excise tax receive an additional lump sum payment in cash (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the "Excise TaxTax Gross-Up"), Company shall pay subject to mandatory tax withholding, which, when added to all payments and benefits allocable to Executive an additional payment (that constitute parachute payments, provides Executive with the same after-tax compensation that he would have received from such parachute payments had none of such compensation constituted a "parachute payment. The amount of any such Tax Gross-up Payment") in an amount such that after payment Up to which Executive becomes entitled under this paragraph will be determined pursuant to the following formula: X = Y divided by Executive of all taxes (including any interest or penalties imposed with respect to such taxes1 - (A + B + C)), including any where X is the total dollar amount of the Tax Gross-Up payable to Executive; Y is the total Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to Executive; A is the Excise Tax imposed upon rate applicable to Executive's parachute payments; B is the Payments. Company shall make an initial determination as highest combined marginal federal income and applicable state income tax rate in effect for Executive, after taking into account the deductibility of state income taxes against federal income taxes to whether a the extent allowable, for the calendar year in which the Tax Gross-up Payment Up is required paid; and C is the applicable Hospital Insurance (Medicare) Tax Rate in effect for Executive with respect to the Tax Gross-Up payment for the calendar year in which the Tax Gross-Up is paid; provided if there is a change in the tax laws after the date hereof that would render the amount determined above insufficient to fully reimburse Executive on an after-tax basis for the amount of any such Gross-up Payment. Excise Tax, Executive shall notify Company in writing of any claim be entitled to such additional amount as may be necessary to provide him/her with such reimbursement. Within ninety (90) days after a determination is made by the Internal Revenue Service whichor Executive's tax advisor that an item of compensation or benefit payable hereunder constitutes a parachute payment under Code Section 280G for which Executive is liable for an Excise Tax, if successful, would require Executive shall identify the nature of the payment to the Company and submit to make a the Company the calculation of the Excise Tax attributable to that payment and the Tax Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company) within ten days of the receipt of such claim. Company shall notify Up to which Executive in writing at least ten days prior to the due date of any response required is entitled with respect to such claim if it plans tax liability. The Company will pay such Tax Gross-Up Amended and Restated Employment Agreement Hemberger, Judith March 2004 7 xx Xxxxxxxxx (net of all applicable withholding taxes, including any taxes required to contest be withheld under Code Section 4999) within ten (10) business days after Executive's submission of the claimcalculation of such Excise Tax and the resulting Tax Gross-Up, provided such calculations represent a reasonable interpretation of the applicable law and regulations. If Company decides In the event that Executive's actual Excise Tax liability is determined by a Final Determination to contest such claimbe greater than the Excise Tax liability previously taken into account for purposes of the Tax Gross-Up paid to Executive pursuant to this Section 10(e), then within ninety (90) days following the Final Determination, Executive shall cooperate fully with submit to the Company in a new Excise Tax calculation based upon the Final Determination. Within ten (10) business days after receipt of such action; providedcalculation, however, the Company shall bear and pay directly or indirectly all costs and expenses (including Executive the additional interest and penalties) incurred in connection with Tax Gross-Up attributable to such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any excess Excise Tax or income taxliability. In the event that Executive's actual Excise Tax liability is determined by a Final Determination to be less than the Excise Tax liability previously taken into account for purposes of the Tax Gross-Up paid to Executive pursuant to this Section 10(e), including interest and penalties with respect thereto, imposed as a result of Company's action. If, as a result of Company's action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, then Executive shall promptly pay such refund to Company If Company fails the Company, promptly upon receipt, any federal or state tax refund attributable to timely notify Executive whether it will contest such claim, or if Company determines not to contest such claim, Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to ExecutiveExcise Tax overpayment.

Parachute Payment Gross-Up. Notwithstanding anything to the contrary in this Agreement, in (i) In the event that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "“Payment"”), would be constitutes a “parachute payment” within the meaning of Section 280G of the Code that are subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the "“Excise Tax"”), Executive will receive a cash payment from the Company shall pay to Executive an additional payment (a "Gross-up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax (a “Gross-Up Payment”). For the avoidance of doubt, Executive shall not receive any additional payment from the Company for any additional income, employment, excise or other taxes imposed upon on Executive as a result of Executive’s receipt of the Payments. Company shall make an initial determination as Gross-Up Payment from the Company. (ii) Subject to the provisions of Section 6(g)(iii), all determinations required to be made under this Section 6(g), including whether and when a Gross-up Up Payment is required and the amount of any such Gross-up Up Payment and the assumptions to be utilized in arriving at the determination, will be made by a nationally recognized certified public accounting firm selected by the Company with the consent of Executive, which should not unreasonably be withheld (the “Accounting Firm”) which will provide detailed supporting calculations both to the Company and Executive within thirty (30) days after the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm will be borne solely by the Company. The Company, as determined in accordance with this Section 6(g), will pay any Gross-Up Payment to Executive shall within five (5) days after the receipt of the Accounting Firm’s determination, but in no event later than the due date by which Executive is required to pay such Excise Tax to the Internal Revenue Service (the “IRS”). If the Accounting Firm determines that no Excise Tax is payable by Executive, it will so indicate to Executive in writing. Any determination by the Accounting Firm will be binding upon the Company and Executive; provided, however, that as a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments that the Company should have made will not have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event the Company exhausts its remedies in accordance with Section 6(g)(iii), or elects not to exercise such remedies, and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of Underpayment that has occurred and the Underpayment will be promptly paid by the Company to or for the benefit of Executive, but in no event later than the due date by which Executive is required to pay such Underpayment to the IRS. (iii) Executive will notify the Company in writing of any potential claim by the Internal Revenue Service which, if successful, IRS that would require Company to make result in a Gross-up Up Payment (or a Gross-up Payment in excess of that, if any, initially determined that has not already been paid by the Company) within ten (10) business days of receiving the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall and will cooperate fully with the Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for contesting any Excise Tax or income taxliability assessed by the IRS, including interest and penalties with respect thereto, imposed as a result of Company's action. If, as a result of Company's action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company If Company fails to timely notify Executive whether it will contest such claim, or if Company determines not to contest such claim, Company shall immediately pay to Executive the portion cost of such claim, if any, which it has not previously paid contest to Executivebe incident solely on the Company.

Parachute Payment Gross-Up. Notwithstanding anything to the contrary in this Agreement, in the event that If any payment or distribution by benefit Executive would receive from the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (would constitute a "Payment"), parachute payment that would be subject Executive to the an excise tax imposed by ("Excise Tax") under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any interest or penalties with respect successor provision), Executive shall be entitled to such excise tax receive an additional lump sum payment in cash (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the "Excise TaxTax Gross-Up"), Company shall pay subject to mandatory tax withholding, which, when added to all payments and benefits allocable to Executive an additional payment (that constitute parachute payments, provides Executive with the same after-tax compensation that he would have received from such parachute payments had none of such compensation constituted a "parachute payment. The amount of any such Tax Gross-up Payment") in an amount such that after payment Up to which Executive becomes entitled under this paragraph will be determined pursuant to the following formula: X = Y divided by Executive of all taxes (including any interest or penalties imposed with respect to such taxes1 - (A + B + C)), including any where X is the total dollar amount of the Tax Gross-Up payable to Executive; Y is the total Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to Executive; A is the Excise Tax imposed upon rate applicable to Executive's parachute payments; B is the Payments. Company shall make an initial determination as highest combined marginal federal income and applicable state income tax rate in effect for Executive, after taking into account the deductibility of state income taxes against federal income taxes to whether a the extent allowable, for the calendar year in which the Tax Gross-up Payment Up is required paid; and C is the applicable Hospital Insurance (Medicare) Tax Rate in effect for Executive with respect to the Tax Gross-Up payment for the calendar year in which the Tax Gross-Up is paid; provided if there is a change in the tax laws after the date hereof that would render the amount determined above insufficient to fully reimburse Executive on an after-tax basis for the amount of any such Gross-up Payment. Excise Tax, Executive shall notify Company in writing of any claim be entitled to such additional amount as may be necessary to provide him/her with such reimbursement. Within ninety (90) days after a determination is made by the Internal Revenue Service whichor Executive's tax advisor that an item of compensation or benefit payable hereunder constitutes a parachute payment under Code Section 280G for which Executive is liable for an Excise Tax, if successfulExecutive shall identify the nature of the payment to the Company and submit to the Company the Amended and Restated Employment Agreement Ivers-Read, would require Company Gillian March, 2004 0 calculxxxxx xf the Excise Tax attributable to make a that payment and the Tax Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company) within ten days of the receipt of such claim. Company shall notify Up to which Executive in writing at least ten days prior to the due date of any response required is entitled with respect to such claim if it plans tax liability. The Company will pay such Tax Gross-Up to contest Executive (net of all applicable withholding taxes, including any taxes required to be withheld under Code Section 4999) within ten (10) business days after Executive's submission of the claimcalculation of such Excise Tax and the resulting Tax Gross-Up, provided such calculations represent a reasonable interpretation of the applicable law and regulations. If Company decides In the event that Executive's actual Excise Tax liability is determined by a Final Determination to contest such claimbe greater than the Excise Tax liability previously taken into account for purposes of the Tax Gross-Up paid to Executive pursuant to this Section 10(e), then within ninety (90) days following the Final Determination, Executive shall cooperate fully with submit to the Company in a new Excise Tax calculation based upon the Final Determination. Within ten (10) business days after receipt of such action; providedcalculation, however, the Company shall bear and pay directly or indirectly all costs and expenses (including Executive the additional interest and penalties) incurred in connection with Tax Gross-Up attributable to such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any excess Excise Tax or income taxliability. In the event that Executive's actual Excise Tax liability is determined by a Final Determination to be less than the Excise Tax liability previously taken into account for purposes of the Tax Gross-Up paid to Executive pursuant to this Section 10(e), including interest and penalties with respect thereto, imposed as a result of Company's action. If, as a result of Company's action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, then Executive shall promptly pay such refund to Company If Company fails the Company, promptly upon receipt, any federal or state tax refund attributable to timely notify Executive whether it will contest such claim, or if Company determines not to contest such claim, Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to ExecutiveExcise Tax overpayment.