Common use of Reimbursement for Excise Tax Clause in Contracts

Reimbursement for Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined (as hereafter provided) that any payment, benefit or distribution to or for the Participant’s benefit under this Agreement (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto), or any interest or penalties with respect to such excise tax (such tax, together with any such interest and penalties, hereafter collectively referred to as the “Excise Tax”), then the Participant shall be entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount such that, after payment by the Participant of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the Participant retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. For purposes of determining the amount of the Gross-Up Payment, the Participant shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Participant’s residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates. (b) All determinations required to be made under this Section 16, including whether an Excise Tax is payable by the Participant, the amount of such Excise Tax, whether a Gross-Up Payment is required, and the amount of such Gross-Up Payment, shall be made by an independent auditor (the “Firm”) selected by the Participant and the Company. The Firm shall be a nationally-recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way for the Company or any affiliate thereof. Either the Company or the Participant may request that a determination be made. The Firm shall submit its determination and detailed supporting calculations to the Participant and the Company as promptly as practicable. If the Firm determines that any Excise Tax is payable by the Participant and that a Gross-Up Payment is required, the Company shall pay the Participant the required Gross-Up Payment within thirty (30) days of receipt of such determination and calculations. In no event shall the Gross-Up Payment be paid later than December 31 of the year following the year in which the Participant pays the applicable Excise Tax. If the Firm determines that no Excise Tax is payable by the Participant, it shall, at the same time it makes such determination, furnish the Participant with an opinion that the Participant has substantial authority not to report any Excise Tax on the Participant’s federal income tax return. Any determination by the Firm as to the amount of the Gross-Up Payment shall be binding upon the Participant and the Company. (c) As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) at the time of the initial determination by the Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). If the Participant thereafter is required to make a payment of any Excise Tax, the Firm shall determine the amount of the Underpayment (if any) that has occurred and submit its determination and detailed supporting calculations to the Participant and the Company as promptly as possible. Any such Underpayment shall be promptly paid by the Company to the Participant, or for the Participant’s benefit, within thirty (30) days of receipt of such determination and calculations, but in no event later than December 31 of the year following the year in which the Participant pays the applicable Excise Tax. (d) In the event that the Internal Revenue Service makes any claim, gives notice of any potential claim or institutes a proceeding against the Participant asserting that any Excise Tax or additional Excise Tax is due in respect of the Payments, the Participant shall promptly give the Company notice of any such claim, potential claim or proceeding. The Company shall have the right to conduct all discussions, negotiations, defenses, actions and proceedings, to the extent reasonably requested by the Company. The Participant will not settle any claim or proceeding relating solely to the Excise Tax payable in respect of the Payments without the consent of the Company, which consent shall not be unreasonably withheld. The Participant shall file, at the Company’s expense, all requests for refunds of the Gross-Up Amount, or any portion thereof, paid to any taxing authority as shall be reasonably requested by the Company and shall pay over to the Company (net of any tax payable thereon) any such refunds, together with any interest thereon, when and as such refunds and interest are received by the Participant. All fees and expenses for services in connection with the determinations and calculations contemplated by this Section 5(f)(ii), including without limitation the costs of the Participant’s own counsel, shall be borne by the Company and shall be paid not later than December 31 of the year following the year in which any such Internal Revenue Service audit is completed or there is a final and nonappealable settlement or other resolution.

Reimbursement for Excise Tax. (a) Anything in In the event that the Participant incurs any Excise Tax on any payments or benefits under this Agreement as a result of a Change of Control (or any other change described in Section 280G(b)(2) of the Code), the Company shall reimburse the Participant the amount of such Excise Tax incurred, but without duplicating any other reimbursement payment available to the contrary notwithstanding, Participant in the event it shall be determined connection with such tax (as hereafter provided) that any payment, benefit or distribution whether pursuant to or for the Participant’s benefit employment agreement or otherwise) and without any “gross up” pursuant to this Agreement for taxes owed by Participant for any reimbursement under this Agreement (a “Payment”), would paragraph. Such reimbursement shall be subject to applicable withholding requirements and shall be paid upon the excise imposition upon the Participant of any Excise Tax. “Excise Tax” means the tax imposed by Section 4999 of the Code (or and any successor provision thereto), or any interest or penalties with respect to such excise tax (such tax, together with any such interest and penalties, hereafter collectively referred to as the “Excise Tax”), then the Participant shall be entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount such that, after payment by the Participant of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the Participant retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. For purposes of determining the amount of the Gross-Up Payment, the Participant shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment whether any payment or benefit is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Participant’s residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates. (b) All determinations required to be made under this Section 16, including whether an Excise Tax is payable by the Participant, and the amount of such Excise Tax, whether (x) the total amount of payments and benefits received by the Participant as a Gross-Up Payment is requiredresult of such Change in Control (or such other change) shall be treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent counsel selected by the Company and reasonably acceptable to the Participant (“Independent Counsel”), a payment or benefit hereunder (in whole or in part) does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code and the Treasury Regulations (including proposed Treasury Regulations) under Section 280G of the Code (the “Regulations”), or such “excess parachute payments” (in whole or in part) are not subject to the Excise Tax; (y) the amount of the payments and benefits hereunder that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of such payments and benefits or (B) the amount of “excess parachute payments” within the meaning of section 280G(b)(1) of the Code (after applying clause (x) hereof); and (z) the value of any noncash benefits or any deferred payment or benefit shall be determined by Independent Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the Code. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding or the opinion of Independent Counsel that the Excise Tax exceeds the amount previously taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the initial payment hereunder), the Company shall make an additional payment in the amount of such Gross-Up Payment, shall be made by an independent auditor (the “Firm”) selected by the Participant excess and the Company. The Firm shall be a nationally-recognized United States public accounting firm which has not, during the two years preceding the date any interest and penalties in respect of its selection, acted in any way for the Company or any affiliate thereof. Either the Company or the Participant may request that a determination be made. The Firm shall submit its determination and detailed supporting calculations to the Participant and the Company as promptly as practicable. If the Firm determines that any Excise Tax is payable by the Participant and that a Gross-Up Payment is required, the Company shall pay the Participant the required Gross-Up Payment such excess within thirty (30) days of the Company’s receipt of such determination and calculations. In no event shall the Gross-Up Payment be paid later than December 31 of the year following the year in which the Participant pays the applicable Excise Tax. If the Firm determines that no Excise Tax is payable by the Participant, it shall, at the same time it makes such determination, furnish the Participant with an opinion that the Participant has substantial authority not to report any Excise Tax on the Participant’s federal income tax return. Any determination by the Firm as to the amount of the Gross-Up Payment shall be binding upon the Participant and the Company. (c) As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) at the time of the initial determination by the Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). If the Participant thereafter is required to make a payment of any Excise Tax, the Firm shall determine the amount of the Underpayment (if any) that has occurred and submit its determination and detailed supporting calculations to the Participant and the Company as promptly as possible. Any such Underpayment shall be promptly paid by the Company to the Participant, or for the Participant’s benefit, within thirty (30) days of receipt notice of such final determination and calculations, but in no event later than December 31 of the year following the year in which the Participant pays the applicable Excise Tax. (d) or opinion. In the event that the Internal Revenue Service makes any claim, gives notice of any potential claim or institutes a proceeding against the Participant asserting that any Excise Tax or additional Excise Tax is due in respect of the Paymentspayments or benefits hereunder, the Participant shall promptly give the Company notice of any such claim, potential claim or proceeding. The Participant will cooperate with the Company shall have the right to conduct in connection with all discussions, negotiations, defenses, actions and proceedingsproceedings solely to the extent relating to any Excise Tax payable in respect of payments or benefits hereunder, to the extent reasonably requested by the Company. The Participant will not settle any claim or proceeding relating solely to the Excise Tax payable in respect of the Payments without the consent of the Company, which consent shall not be unreasonably withheld. The Participant shall file, at the Company’s expense, all requests for refunds of the Gross-Up Amount, or any portion thereof, paid to any taxing authority as shall be reasonably requested by the Company and shall pay over to the Company (net of any tax payable thereon) any such refunds, together with any interest thereon, when and as such refunds and interest are received by the Participant. All fees and expenses for services in connection with the determinations and calculations contemplated by this Section 5(f)(ii), including without limitation the costs of the Participant’s own counsel, Independent Counsel shall be borne by the Company and shall be paid not later than December 31 of the year following the year in which any such Internal Revenue Service audit is completed or there is a final and nonappealable settlement or other resolutionCompany.