Section 409A Gross-Up Clause Samples
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Section 409A Gross-Up. The Company acknowledges and agrees that if any payment, award, benefit, or distribution (or any acceleration of any payment, award, benefit, or distribution) made or provided to Executive or for Executive’s benefit in connection with this Agreement, or Executive’s employment with the Company or the termination thereof (the “Payments”) is determined to be subject to the additional taxes, interest, or penalties imposed by Section 409A, or any interest or penalties with respect to such additional taxes, interest, or penalties (such additional taxes, together with any such interest and penalties, are referred to collectively as the “Section 409A Tax”), then Executive will be entitled to receive an additional payment (a “409A Gross-Up Payment”) from the Company such that the net amount Executive retains after paying any applicable Section 409A Tax and any federal, state, or local income or FICA taxes on such 409A Gross-Up Payment, shall be equal to the amount Executive would have received if the Section 409A Tax were not applicable to the Payments. Unless otherwise agreed in writing by Executive and the Company, all determinations of the Section 409A Tax and 409A Gross-Up Payment, if any, will be made by an independent accounting firm designated by the Company, and such accounting firm shall be instructed to provide the Company and Executive with a written opinion of any determination such accounting firm has been requested to provide. The Company shall be responsible for such accounting firm’s fees. For purposes of determining the amount of the 409A Gross-Up Payment, if any, Executive will be deemed to pay federal income tax at the actual marginal rate of federal income taxation in the calendar year in which the total Payments are made and state and local income taxes at the actual marginal rate of taxation in the state and locality of Executive’s residence on the date the total Payments are made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. If the Section 409A Tax is determined by the Internal Revenue Service, on audit or otherwise, to exceed the amount taken into account hereunder in calculating the 409A Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the 409A Gross-Up Payment), the Company shall make another 409A Gross-Up Payment in respect of such excess (plus any interest, penalties, or additions payable b...
Section 409A Gross-Up. The Company and Executive intend that the Agreement comply with Section 409A of the Code. However, in the event that any additional taxes under Section 409A of the Code (including the additional 20 percent tax under Section 409A(a)(1)(B)(i)(II) of the Code and the amount calculated as interest under Section 409A(a)(1)(B)(ii) of the Code) are imposed on any compensation or benefits to which Executive is entitled under this Agreement, then the amount of such additional taxes (including any additional taxes imposed on amounts that are aggregated with amounts payable under this Agreement for purposes of Section 409A of the Code) shall be considered an Excise Tax for purposes of this Article V, and Executive shall be entitled to a Gross-Up Payment in respect of such taxes equal to the product of (i) the amount of such Excise Tax multiplied by (ii) the Gross-Up Multiple (as defined in Section 5.4).
Section 409A Gross-Up. If any Payment gives rise, directly or indirectly, to liability on the part of the Executive for tax, penalties or interest as a result of 409A, Invacare shall make additional cash payments to the Executive, from time to time and at the same time, as any Payment giving rise to such liability is paid or provided to the Executive (or as soon thereafter as is practicable and, in any event, no later than March 15 of the calendar year which follows the calendar year in which the Payment giving rise to Section 409A liability was made or provided to the Executive), in such amounts as are necessary to put the Executive in the same position, after payment of all federal, state, and local taxes (whether income taxes, excise taxes under 409A or otherwise, or other taxes) and interest and penalties, as the Executive would have been in after payment of all federal, state, and local income taxes if the Payments had not given rise to excise taxes, penalties or interest under 409A; provided, however, that in no event shall Invacare be required to make additional cash payments under this Section 3.3 if the Accounting Firm determines that doing so would result in a windfall to the Executive due to duplicative gross-up provisions in this Agreement or in any other binding arrangement.
Section 409A Gross-Up. If, notwithstanding the efforts of the parties to comply with ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ is subject to any excise tax under Section 409A, DDR will make additional payments (“409A Gross-Up Payments”) to ▇▇▇▇▇▇▇ so that after taking into account any such additional tax and any related interest and/or penalties and the 409A Gross-Up Payments (other than in respect of or regarding any units or awards granted or vested pursuant to any Performance Unit Agreement between ▇▇▇▇▇▇▇ and the Company, or any equity awards granted or issued pursuant to any outperformance award plans (including the Outperformance Long-Term Incentive Plan) or supplemental equity award plans (including the 2007 Supplemental Equity Plan) of the Company), ▇▇▇▇▇▇▇ will be in the same position as if no excise tax under Section 409A and no related interest or penalties had been imposed upon him pursuant to Section 409A. The Accounting Firm will have the same general duties with respect to the determination of the amount of any Section 409A Gross-Up as it has with respect to the determination of Gross-Up Payments with respect to Section 4999 under Section 13 and the parties will follow procedures in connection with the determination and payment of any Section 409A Gross-Up Payments that are similar to those specified in Section 13 in connection with the determination and payment of any Gross-Up Payments with respect to Section 4999 (including those procedures in Section 13 that relate to the time at which additional payments are made).
Section 409A Gross-Up. If the Company determines that the payment of the Severance Payment will cause the Executive to incur additional tax or interest under Code Section 409A, or if the Internal Revenue Service (the “IRS”) imposes additional tax or interest under Code Section 409A due to the payment of the Severance Payment, the Company shall pay to the Executive such additional compensation as is necessary (after taking into account all federal, state, and local income taxes payable by the Executive as a result of the receipt of such additional compensation) to place the Executive in the same after-tax position the Executive would have been in had no such additional tax (or any interest or penalties thereon) been paid or incurred with respect to any of such amounts, provided that such amount shall be reduced by $400,000 (such reduced amount, the “409A Gross-Up”). The Company shall pay such additional compensation as soon as administratively practicable after the earlier of the time when the Company makes its determination that such additional tax or interest under Code Section 409A will be imposed and the time such additional tax or interest under Code Section 409A is due to be paid to the IRS. In no event, however, shall such payment be made after December 31 of the year after the year in which the Executive remits such additional tax or interest.