Common use of Tax Gross-Up Payment Clause in Contracts

Tax Gross-Up Payment. Upon the occurrence of a Change in Control (as defined below) of the Company, if all or any portion of the payments provided under this Agreement and/or any other payments and benefits that the Executive receives or is entitled to receive from the Company or an affiliate thereof (should the Executive be entitled to the same in accordance with the terms hereof or such other benefits) constitutes an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code (each such payment, a “Parachute Payment”), and would result in the imposition on the Executive of an excise tax under Section 4999 of the Code (“Excise Tax”), then in addition to any other benefits to which the Executive is entitled under this Agreement, the Company shall pay the Executive an additional amount in cash (the “Gross-Up Payment”) such that the net amount received by the Executive in connection with the Change in Control, after payment of (i) any Excise Tax and (ii) any Federal, state and local income and employment taxes on the Gross-Up Payment by Executive, shall be equal to the aggregate Parachute Payments payable to the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income tax at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state or locality of the Executive’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 which could be obtained from deduction of such state and local taxes. Any Gross-Up Payment due to the Executive under this Section 3(e) shall be paid to the Executive no later than the end of the year following the year in which the Executive or the Company paid the related taxes.

Tax Gross-Up Payment. Upon In the occurrence of event it shall be determined, either by the Company or by a Change in Control (as defined below) final determination of the CompanyInternal Revenue Service, if all that any payment, distribution or any portion of the payments provided under this Agreement and/or any other payments and benefits that the Executive receives benefit by or is entitled to receive from the Company to or an affiliate thereof for the benefit of Executive pursuant to Section 4.2(a) or otherwise (should the “Payment”) would cause Executive be entitled to become subject to the same in accordance with the terms hereof or such other benefits) constitutes an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code (each such payment, a “Parachute Payment”), and would result in the imposition on the Executive of an excise tax under imposed by Section 4999 of the Code (the “Excise Tax”), then in addition to any other benefits to which the Executive is entitled under this Agreement, the Company shall pay to or for the Executive benefit of Executive, within the later of ninety (90) days of the termination date of Executive’s employment or ninety (90) days of the date of determination referred to above, an additional amount in cash (the “Gross-Up Payment”) such in an amount that shall fund the net amount received payment by the Executive in connection with the Change in Control, after payment of (i) any Excise Tax on the Payment, as well as any income taxes imposed on the Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment and (ii) any Federal, state and local income and employment interest or penalties imposed with respect to taxes on the Gross-Up Payment by Executive, shall be equal to the aggregate Parachute Payments payable to the Executiveor any Excise Tax. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal, state and local income tax taxes at the highest nominal marginal rate of Federal such federal, state and local income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state or locality of the Executive’s residence in the calendar year in which the Gross-Up Payment is to be madedue, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any In the event that the Excise Tax is subsequently determined to be less than the amount taken into account to determine the amount of the Gross-Up Payment, then Executive shall repay to the Company at that time the portion of the Gross-Up Payment due attributable to such reduction (plus an amount equal to any tax reduction, whether of the Excise Tax, any applicable income tax, or any applicable employment tax, which Executive has received as a result of such initial repayment). In the event that the Excise Tax is subsequently determined, whether by the Company or by a final determination of the Internal Revenue Service, to be more than the amount taken into account to determine the amount of the Gross-Up Payment, then the Company shall pay to Executive an additional amount, which shall be determined using the same methods as were used for calculating the Gross-Up Payment, with respect to such excess. For purposes of this Section 4(b), a determination of the Internal Revenue Service as to the amount of Excise Tax for which an Executive under this Section 3(eis liable shall not be treated as final until the time that either (i) the Company agrees to acquiesce to the determination of the Internal Revenue Service or (ii) the determination of the Internal Revenue Service has been upheld in a court of competent jurisdiction and the Company decides not to appeal such judicial decision or such decision is not appealable. If the Company chooses to contest the determination of the Internal Revenue Service, then all costs, attorneys’ fees, charges assessed and other expenses shall be borne and paid to when due by the Executive no later than the end of the year following the year in which the Executive or the Company paid the related taxesCompany.

Tax Gross-Up Payment. Upon In the occurrence of event it shall be determined, either by the Company or by a Change in Control (as defined below) final determination of the CompanyInternal Revenue Service, if all that any payment, distribution or any portion of the payments provided under this Agreement and/or any other payments and benefits that the Executive receives benefit by or is entitled to receive from the Company to or an affiliate thereof for the benefit of Executive pursuant to Section 4.2(a) or otherwise (should the "Payment") would cause Executive be entitled to become subject to the same in accordance with the terms hereof or such other benefits) constitutes an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code (each such payment, a “Parachute Payment”), and would result in the imposition on the Executive of an excise tax under imposed by Section 4999 of the Code (“the "Excise Tax”"), then in addition to any other benefits to which the Executive is entitled under this Agreement, the Company shall pay to or for the Executive benefit of Executive, within the later of ninety (90) days of the termination date of Executive's employment or ninety (90) days of the date of determination referred to above, an additional amount in cash (the “"Gross-Up Payment”") such in an amount that shall fund the net amount received payment by the Executive in connection with the Change in Control, after payment of (i) any Excise Tax on the Payment, as well as any income taxes imposed on the Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment and (ii) any Federal, state and local income and employment interest or penalties imposed with respect to taxes on the Gross-Up Payment by Executive, shall be equal to the aggregate Parachute Payments payable to the Executiveor any Excise Tax. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal, state and local income tax taxes at the highest nominal marginal rate of Federal such federal, state and local income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state or locality of the Executive’s residence in the calendar year in which the Gross-Up Payment is to be madedue, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. Any In the event that the Excise Tax is subsequently determined to be less than the amount taken into account to determine the amount of the Gross-Up Payment, then Executive shall repay to the Company at that time the portion of the Gross-Up Payment due attributable to such reduction (plus an amount equal to any tax reduction, whether of the Excise Tax, any applicable income tax, or any applicable employment tax, which Executive has received as a result of such initial repayment). In the event that the Excise Tax is subsequently determined, whether by the Company or by a final determination of the Internal Revenue Service, to be more than the amount taken into account to determine the amount of the Gross-Up Payment, then the Company shall pay to Executive an additional amount, which shall be determined using the same methods as were used for calculating the Gross-Up Payment, with respect to such excess. For purposes of this Section 4(b), a determination of the Internal Revenue Service as to the amount of Excise Tax for which an Executive under this Section 3(eis liable shall not be treated as final until the time that either (i) the Company agrees to acquiesce to the determination of the Internal Revenue Service or (ii) the determination of the Internal Revenue Service has been upheld in a court of competent jurisdiction and the Company decides not to appeal such judicial decision or such decision is not appealable. If the Company chooses to contest the determination of the Internal Revenue Service, then all costs, attorneys' fees, charges assessed and other expenses shall be borne and paid to when due by the Executive no later than the end of the year following the year in which the Executive or the Company paid the related taxesCompany.

Tax Gross-Up Payment. Upon the occurrence of a Change in Control (as defined below) of the Company, if all or any portion of the payments provided under this Agreement and/or any other payments and benefits that the Executive receives or is entitled to receive from the Company or an affiliate thereof (should the Executive be entitled to the same in accordance with the terms hereof or such other benefits) constitutes an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code (each such payment, a “Parachute Payment”), and would result in the imposition on the Executive of an excise tax under Section 4999 of the Code (“Excise Tax”), then in addition to any other benefits to which the Executive is entitled under this Agreement, the Company shall pay the Executive an additional amount in cash (the “Gross-Up Payment”) such that the net amount received by the Executive in connection with the Change in Control, after payment of (i) any Excise Tax and (ii) any Federal, state and local income and employment taxes on the Gross-Up Payment by Executive, shall be equal to the aggregate Parachute Payments payable to the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income tax at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state or locality of the Executive’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 which could be obtained from deduction of such state and local taxes. Any Gross-Up Payment due to the Executive under this Section 3(e3(d) shall be paid to the Executive no later than the end of the year following the year in which the Executive or the Company paid the related taxes.

Tax Gross-Up Payment. Upon In the occurrence of event that there shall occur a Change in Control (as defined below) of the Company, if all the Executive becomes entitled to one or more payments (with a "payment" including, without limitation, the vesting of an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any portion of other plan, arrangement, or agreement with the payments provided under this Agreement and/or company or any other payments and benefits that affiliated company (the Executive receives "Total Payments"), which are or is entitled to receive from the Company or an affiliate thereof (should the Executive be entitled become subject to the same in accordance with the terms hereof or such other benefits) constitutes an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code (each such payment, a “Parachute Payment”), and would result in the imposition on the Executive of an excise tax under imposed by Section 4999 of the Internal Revenue Code (“the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax”"), then in addition to any other benefits to which the Executive is entitled under this Agreement, the Company shall pay the Executive an additional amount in cash shall be payable to the Executive at the time specified below pursuant to Section 5(b)(ii) about the (the “Gross-Up up Payment”") (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount received retained by the Executive in connection with the Change in ControlExecutive, after payment of (i) reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and (ii) any Federalfederal, state and local income or employment tax and employment taxes Excise Tax on the Gross-Up up Payment provided for by Executivethis paragraph 6, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the aggregate Parachute Payments payable sum of (A) the Total Payments, and (B) an amount equal to the Executive. For product of any deductions disallowed for federal, state, or local income tax purposes because of determining the amount inclusion of the Gross-Up Payment, up Payment in the Executive shall be deemed to pay Federal Executive's adjusted gross income tax at multiplied by the highest applicable marginal rate of Federal federal, state, or local income taxation in taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state or locality of the Executive’s residence in the calendar year in which the Gross-Up up Payment is to be made, net . For purposes of determining whether any of the maximum reduction in Federal income taxes which could Total Payments will be obtained from deduction subject to the Excise Tax and the amount of such state and local taxes. Any Gross-Up Payment due to the Executive under this Section 3(e) shall be paid to the Executive no later than the end of the year following the year in which the Executive or the Company paid the related taxes.Excise Tax:

Tax Gross-Up Payment. Upon the occurrence of a Change in of Control (as defined below) of the Company, if all or any portion of the payments provided under this Agreement Agreement, and/or any other payments and benefits that the Executive receives or is entitled to receive from the Company or an affiliate thereof (should the Executive be entitled to the same in accordance with the terms hereof or such other benefits) constitutes thereof, constitute an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code (each such payment, a “Parachute Payment”), and would result in the imposition on the Executive of an excise tax under Section 4999 of the Code (“Excise Tax”), then in addition to any other benefits to which the Executive is entitled under this Agreement, the Company shall pay the Executive an additional amount in cash (the “Gross-Up Payment”) such that the net amount received by the Executive in connection with the Change in of Control, after payment of (i) any Excise Tax and (ii) any Federal, state and local income and employment taxes on the Gross-Up Payment by Executive, shall be equal to the aggregate Parachute Payments payable to the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income tax at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state or locality of the Executive’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 which could be obtained from deduction of such state and local taxes. Any Gross-Up Payment due to the Executive under this Section 3(e3(d) shall be paid to the Executive no later than the end of the year following the year in which the Executive or the Company paid the related taxes.

Tax Gross-Up Payment. Upon the occurrence of a Change in Control (as defined below) of the Company, if all or any portion of the payments provided under this Agreement and/or any other payments and benefits that the Executive receives or is entitled to receive from the Company or an affiliate thereof (should the Executive be entitled to the same in accordance with the terms hereof or such other benefits) constitutes an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code (each such payment, a “Parachute Payment”), and would result in the imposition on the Executive of an excise tax under Section 4999 of the Code (“Excise Tax”), then in addition to any other benefits to which the Executive is entitled under this Agreement, the Company shall pay the Executive an additional amount in cash (the “Gross-Up Payment”) such that the net amount received by the Executive in connection with the Change in Control, after payment of (i) any Excise Tax and (ii) any Federal, state and local income and employment taxes on the Gross-Up Payment by Executive, shall be equal to the aggregate Parachute Payments payable to the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income tax at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state or locality of the Executive’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 which could be obtained from deduction of such state and local taxes. Any Gross-Up Payment due to the Executive under this Section 3(e3(d) shall be paid to the Executive no later than the end of the year following the year in which the Executive or the Company paid the related taxes.

Tax Gross-Up Payment. Upon the occurrence of a Change in of Control (as defined below) of the Company, if all or any portion of the payments provided under this Agreement and/or any other payments and benefits that the Executive receives or is entitled to receive from the Company or an affiliate thereof (should the Executive be entitled to the same in accordance with the terms hereof or such other benefits) constitutes an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code (each such payment, a “Parachute Payment”), and would result in the imposition on the Executive of an excise tax under Section 4999 of the Code (“Excise Tax”), then in addition to any other benefits to which the Executive is entitled under this Agreement, the Company shall pay the Executive an additional amount in cash (the “Gross-Up Payment”) such that the net amount received by the Executive in connection with the Change in of Control, after payment of (i) any Excise Tax and (ii) any Federal, state and local income and employment taxes on the Gross-Up Payment by Executive, shall be equal to the aggregate Parachute Payments payable to the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income tax at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state or locality of the Executive’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 which could be obtained from deduction of such state and local taxes. Any Gross-Up Payment due to the Executive under this Section 3(e3(d) shall be paid to the Executive no later than the end of the year following the year in which the Executive or the Company paid the related taxes.