Common use of Parachute Payment Gross-Up Clause in Contracts

Parachute Payment Gross-Up. If any payment or benefit Executive would receive from the Company or otherwise would constitute a parachute payment that would subject Executive to an excise tax ("Excise Tax") under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision), Executive shall be entitled to receive an additional lump sum payment in cash (the "Tax Gross-Up"), subject to mandatory tax withholding, which, when added to all payments and benefits allocable to Executive 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 to which Executive becomes entitled under this paragraph will be determined pursuant to the following formula: X = Y divided by (1 - (A + B + C)), where X is the total dollar amount of the Tax Gross-Up payable to Executive; Y is the total Excise Tax imposed on Executive; A is the Excise Tax rate applicable to Executive's parachute payments; B is the 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 the extent allowable, for the calendar year in which the Tax Gross-Up is 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 Excise Tax, Executive shall be entitled to such additional amount as may be necessary to provide him with such reimbursement. Within ninety (90) days after a determination is made by the Internal Revenue Service or 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, Executive shall identify the nature of the payment to the Company and submit to the Company the calculation of the Excise Tax attributable to that payment and the Tax Gross-Up to which Executive is entitled with respect to such tax liability. The Company will pay such Tax Gross-Up to 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 calculation of such Excise Tax and the resulting Tax Gross-Up, provided such calculations represent a reasonable interpretation of the applicable law and regulations. In the event that Executive's actual Excise Tax liability is determined by a Final Determination to be greater than the Excise Tax liability previously taken into account for purposes of the Tax Gross-Up paid to Executive pursuant to this Section 9(e), then within ninety (90) days following the Final Determination, Executive shall submit to the Company a new Excise Tax calculation based upon the Final Determination. Within ten (10) business days after receipt of such calculation, the Company shall pay Executive the additional Tax Gross-Up attributable to such excess Excise Tax liability. 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 9(e), then Executive shall refund to the Company, promptly upon receipt, any federal or state tax refund attributable to the Excise Tax overpayment.

Parachute Payment Gross-Up. If any payment or benefit Executive would receive from the Company or otherwise would constitute a parachute payment that would subject Executive to an excise tax ("Excise Tax") under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision), Executive shall be entitled to receive an additional lump sum payment in cash (the "Tax Gross-Up"), subject to mandatory tax withholding, which, when added to all payments and benefits allocable to Executive 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 to which Executive becomes entitled under this paragraph will be determined pursuant to the following formula: X = Y divided by (1 - (A + B + C)), where X is the total dollar amount of the Tax Gross-Up payable to Executive; Y is the total Excise Tax imposed on Executive; A is the Excise Tax rate applicable to Executive's parachute payments; B is the 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 the extent allowable, for the calendar year in which the Tax Gross-Up is 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 Excise Tax, Executive shall be entitled to such additional amount as may be necessary to provide him him/her with such reimbursement. Within ninety (90) days after a determination is made by the Internal Revenue Service or 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, Executive shall identify the nature of the payment to the Company and submit to the Company the calculation of the Excise Tax attributable to that payment and the Tax Gross-Up to which Executive is entitled with respect to such tax liability. The Company will pay such Tax Gross-Up to Executive Amended and Restated Employment Agreement Hemberger, Judith March 2004 7 xx Xxxxxxxxx (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 calculation of such Excise Tax and the resulting Tax Gross-Up, provided such calculations represent a reasonable interpretation of the applicable law and regulations. In the event that Executive's actual Excise Tax liability is determined by a Final Determination to be greater than the Excise Tax liability previously taken into account for purposes of the Tax Gross-Up paid to Executive pursuant to this Section 9(e10(e), then within ninety (90) days following the Final Determination, Executive shall submit to the Company a new Excise Tax calculation based upon the Final Determination. Within ten (10) business days after receipt of such calculation, the Company shall pay Executive the additional Tax Gross-Up attributable to such excess Excise Tax liability. 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 9(e10(e), then Executive shall refund to the Company, promptly upon receipt, any federal or state tax refund attributable to the Excise Tax overpayment.

Parachute Payment Gross-Up. If any payment or benefit Executive would receive from the Company or otherwise would constitute a parachute payment that would subject Executive to an excise tax ("Excise Tax") under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision), Executive shall be entitled to receive an additional lump sum payment in cash (the "Tax Gross-Up"), subject to mandatory tax withholding, which, when added to all payments and benefits allocable to Executive 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 to which Executive becomes entitled under this paragraph will be determined pursuant to the following formula: X = Y divided by (1 - (A + B + C)), where X is the total dollar amount of the Tax Gross-Up payable to Executive; Y is the total Excise Tax imposed on Executive; A is the Excise Tax rate applicable to Executive's parachute payments; B is the 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 the extent allowable, for the calendar year in which the Tax Gross-Up is 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 Excise Tax, Executive shall be entitled to such additional amount as may be necessary to provide him him/her with such reimbursement. Within ninety (90) days after a determination is made by the Internal Revenue Service or 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, Executive shall identify the nature of the payment to the Company and submit to the Company the calculation of the Excise Tax attributable to that payment and the Tax Gross-Up to which Executive is entitled with respect to such tax liability. The Company will pay such Tax Gross-Up to Executive (net of all applicable withholding taxes, including any taxes required to be withheld under Code Section Amended and Restated Employment Agreement Mast, Erle March, 2004 7 undxx Xxxx Xxction 4999) within ten (10) business days after Executive's submission of the calculation of such Excise Tax and the resulting Tax Gross-Up, provided such calculations represent a reasonable interpretation of the applicable law and regulations. In the event that Executive's actual Excise Tax liability is determined by a Final Determination to be greater than the Excise Tax liability previously taken into account for purposes of the Tax Gross-Up paid to Executive pursuant to this Section 9(e10(e), then within ninety (90) days following the Final Determination, Executive shall submit to the Company a new Excise Tax calculation based upon the Final Determination. Within ten (10) business days after receipt of such calculation, the Company shall pay Executive the additional Tax Gross-Up attributable to such excess Excise Tax liability. 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 9(e10(e), then Executive shall refund to the Company, promptly upon receipt, any federal or state tax refund attributable to the Excise Tax overpayment.

Parachute Payment Gross-Up. If any payment or benefit Executive would receive from the Company or otherwise would constitute a parachute payment that would subject Executive to an excise tax ("Excise Tax") under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision), Executive shall be entitled to receive an additional lump sum payment in cash (the "Tax Gross-Up"), subject to mandatory tax withholding, which, when added to all payments and benefits allocable to Executive 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 to which Executive becomes entitled under this paragraph will be determined pursuant to the following formula: Employment Agreement Patrick Mahaffy February 2004 0 X = Y divided by (1 - (A + B + C)), where X is the total dollar amount of the Tax Gross-Up payable to Executive; Y is the total Excise Tax imposed on Executive; A is the Excise Tax rate applicable to Executive's parachute payments; B is the 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 the extent allowable, for the calendar year in which the Tax Gross-Up is 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 Excise Tax, Executive shall be entitled to such additional amount as may be necessary to provide him with such reimbursement. Within ninety (90) days after a determination is made by the Internal Revenue Service or 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, Executive shall identify the nature of the payment to the Company and submit to the Company the calculation of the Excise Tax attributable to that payment and the Tax Gross-Up to which Executive is entitled with respect to such tax liability. The Company will pay such Tax Gross-Up to 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 calculation of such Excise Tax and the resulting Tax Gross-Up, provided such calculations represent a reasonable interpretation of the applicable law and regulations. In the event that Executive's actual Excise Tax liability is determined by a Final Determination to be greater than the Excise Tax liability previously taken into account for purposes of the Tax Gross-Up paid to Executive pursuant to this Section 9(e)paragraph, then within ninety (90) days following the Final Determination, Executive shall submit to the Company a new Excise Tax calculation based upon the Final Determination. Within ten (10) business days after receipt of such calculation, the Company shall pay Executive the additional Tax Gross-Up attributable to such excess Excise Tax liability. 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 9(e)paragraph, then Executive shall refund to the Company, promptly upon receipt, any federal or state tax refund attributable to the Excise Tax overpayment.. Employment Agreement Patrick Mahaffy February 2004 0

Parachute Payment Gross-Up. If any payment or benefit Executive would receive from the Company or otherwise would constitute a parachute payment that would subject Executive to an excise tax ("Excise Tax") under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision), Executive shall be entitled to receive an additional lump sum payment in cash (the "Tax Gross-Up"), subject to mandatory tax withholding, which, when added to all payments and benefits allocable to Executive 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 to which Executive becomes entitled under this paragraph will be determined pursuant to the following formula: X = Y divided by (1 - (A + B + C)), where X is the total dollar amount of the Tax Gross-Up payable to Executive; Y is the total Excise Tax imposed on Executive; A is the Excise Tax rate applicable to Executive's parachute payments; B is the 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 the extent allowable, for the calendar year in which the Tax Gross-Up is 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 Excise Tax, Executive shall be entitled to such additional amount as may be necessary to provide him him/her with such reimbursement. Within ninety (90) days after a determination is made by the Internal Revenue Service or 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, Executive shall identify the nature of the payment to the Company and submit to the Company the calculation of Amended and Restated Employment Agreement Ivers-Read, Gillian March, 2004 0 calculxxxxx xf the Excise Tax attributable to that payment and the Tax Gross-Up to which Executive is entitled with respect to such tax liability. The Company will pay such Tax Gross-Up to 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 calculation of such Excise Tax and the resulting Tax Gross-Up, provided such calculations represent a reasonable interpretation of the applicable law and regulations. In the event that Executive's actual Excise Tax liability is determined by a Final Determination to be greater than the Excise Tax liability previously taken into account for purposes of the Tax Gross-Up paid to Executive pursuant to this Section 9(e10(e), then within ninety (90) days following the Final Determination, Executive shall submit to the Company a new Excise Tax calculation based upon the Final Determination. Within ten (10) business days after receipt of such calculation, the Company shall pay Executive the additional Tax Gross-Up attributable to such excess Excise Tax liability. 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 9(e10(e), then Executive shall refund to the Company, promptly upon receipt, any federal or state tax refund attributable to the Excise Tax overpayment.