Common use of Tax Reimbursement Payments Clause in Contracts

Tax Reimbursement Payments. In the event that any amount or benefit paid or distributed to Employee pursuant to this Agreement, taken together with any amounts or benefits otherwise paid or distributed to Employee by the Company or its affiliates (collectively, the “Covered Payments”), including, without limitation, any profits realized in respect of the receipt, vesting or exercise of stock options or warrants and similar events, are or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Company shall pay to Employee at the time specified below an additional amount (the “Tax Reimbursement Payment”), such that the net amount retained by Employee with respect to such Covered Payments, after deducting any Excise Tax on the Covered Payments, as well as any Federal, state and local income taxes and Excise Tax on the Tax Reimbursement Payment provided for by this Section 9, but before deduction for any Federal, state or local income or employment tax withholding on such Covered Payments, shall be equal to the amount of the Covered Payments. The Company shall reimburse Employee only as a result of excise taxes imposed under Section 4999 of the Code (or a successor Code provision of comparable intent). (a) For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of such Excise Tax, (b) such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of the Company’s independent certified public accountants or tax counsel selected by such Accountants (the “Accountants”), such Covered Payments, in whole or in part, either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to the Excise Tax, and (i) the value of any non-cash benefits or any deferred payments or benefits shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Tax Reimbursement Payment, Employee shall be deemed to pay: (i) Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Tax Reimbursement Payment is to be made, and taking into account the effect of loss of the value of itemized deductions and personal exemptions as a result of Employee’s receipt of the Tax Reimbursement Payment; and (ii) any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Tax Reimbursement Payment is to be made, net of the maximum reduction in Federal incomes taxes that could be obtained from the deduction of such state or local taxes if paid in such year. (d) In the event that the Excise Tax is subsequently determined by the Accountants, or pursuant to any proceeding or negotiations with the Internal Revenue Service, to be less than the amount taken into account hereunder in calculating the Tax Reimbursement Payment made, Employee shall repay to the Company, at the time that the amount of such reduction in the Excise Tax is finally determined, the portion of such prior Tax Reimbursement Payment that would not have been paid if such Excise Tax had been applied in initially calculating such Tax Reimbursement Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any portion of the Tax Reimbursement Payment to be refunded to the Company has been paid to any Federal, state or local tax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to Employee, and interest payable to the Company shall not exceed interest received or credited to Employee by such tax authority for the period it held such portion. Employee and the Company shall mutually agree upon a course of action to be pursued (and the method of allocating the expenses thereof) if Employee’s good faith claim for refund or credit is denied. (e) In the event that the Excise Tax is later determined by the Accountants, or pursuant to any proceeding or negotiations with the Internal Revenue Service, to exceed the (f) amount taken into account hereunder at the time the Tax Reimbursement Payment is made (including, but not limited to, by reason of any payment the existence or amount of which cannot be determined at the time of the Tax Reimbursement Payment), the Company shall make an additional Tax Reimbursement Payment in respect of such excess (plus any interest or penalty payable with respect to such excess) at the time that the amount of such excess is finally determined. (g) The Tax Reimbursement Payment (or any portion thereof) provided for in this Section 9 shall be paid to Employee not later than fifteen (15) days following payment of the Covered Payments; provided, however, that if the amount of such Tax Reimbursement Payment (or any portion thereof) cannot be finally determined on or before the date on which payment is due, the Company shall pay to Employee by such date an amount estimated in good faith by the Accountants to be the minimum amount of such Tax Reimbursement Payment, and shall pay to Employee the remainder of such Tax Reimbursement Payment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined, but in no event later the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the taxes for which the Tax Reimbursement Payment is being paid. In the event that the amount of the estimated Tax Reimbursement Payment exceeds the amount subsequently determined to have been due, such excess shall be paid by the Company to Employee, within fifteen (15) days after written demand by the Company for repayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (h) Notwithstanding anything in this Agreement to the contrary, if applicable, the Company shall not pay Covered Payments and Tax Reimbursement Payments under this Agreement earlier than the earliest date permitted by Section 409A of the Code, or later than the latest date permitted by Section 409A of the Code, if, as determined in the reasonable judgment of outside counsel hired by the Company, payment on the originally scheduled date would cause the Employee to incur adverse tax consequences under Section 409A of the Code. Covered Payments and Tax Reimbursement Payments that are subject to Section 409A of the Code shall only be paid upon an event permitted by Section 409A of the Code, and this Agreement shall be administered consistently with Section 409A of the Code, to the extent applicable.

Tax Reimbursement Payments. In the event that any amount or benefit paid or distributed to Employee pursuant to this Agreement, taken together with any amounts or benefits otherwise paid or distributed to Employee by the Company or its affiliates (collectively, the “"Covered Payments”"), including, without limitation, any profits realized in respect of the receipt, vesting or exercise of stock options or warrants and similar events, are or become subject to the tax (the “"Excise Tax”") imposed under Section 4999 of the Code", the Company shall pay to Employee at the time specified below an additional amount (the “"Tax Reimbursement Payment”"), such that the net amount retained by Employee with respect to such Covered Payments, after deducting any Excise Tax on the Covered Payments, as well as any Federal, state and local income taxes and Excise Tax on the Tax Reimbursement Payment provided for by this Section 9, but before deduction for any Federal, state or local income or employment tax withholding on such Covered Payments, shall be equal to the amount of the Covered Payments. The Company shall reimburse Employee only as a result of excise taxes imposed under Section 4999 of the Code (or a successor Code provision of comparable intent). (a) For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of such Excise Tax, , (bi) such Covered Payments will be treated as “"parachute payments” " within the meaning of Section 280G of the Code, and all “"parachute payments” " in excess of the “"base amount” " (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of the Company’s 's independent certified public accountants or tax counsel selected by such Accountants (the “"Accountants”"), such Covered Payments, in whole or in part, either do not constitute “"parachute payments” " or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the “"base amount,” " or such “"parachute payments” " are otherwise not subject to the Excise Tax, and (iii) the value of any non-cash benefits or any deferred payments or benefits shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (cb) For purposes of determining the amount of the Tax Reimbursement Payment, Employee shall be deemed to pay: (i) Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Tax Reimbursement Payment is to be made, and taking into account the effect of loss of the value of itemized deductions and personal exemptions as a result of Employee’s 's receipt of the Tax Reimbursement Payment; and (ii) any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Tax Reimbursement Payment is to be made, net of the maximum reduction in Federal incomes taxes that could be obtained from the deduction of such state or local taxes if paid in such year. (dc) In the event that the Excise Tax is subsequently determined by the Accountants, or pursuant to any proceeding or negotiations with the Internal Revenue Service, to be less than the amount taken into account hereunder in calculating the Tax Reimbursement Payment made, Employee shall repay to the Company, at the time that the amount of such reduction in the Excise Tax is finally determined, the portion of such prior Tax Reimbursement Payment that would not have been paid if such Excise Tax had been applied in initially calculating such Tax Reimbursement Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any portion of the Tax Reimbursement Payment to be refunded to the Company has been paid to any Federal, state or local tax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to Employee, and interest payable to the Company shall not exceed interest received or credited to Employee by such tax authority for the period it held such portion. Employee and the Company shall mutually agree upon a course of action to be pursued (and the method of allocating the expenses thereof) if Employee’s 's good faith claim for refund or credit is denied. (ed) In the event that the Excise Tax is later determined by the Accountants, or pursuant to any proceeding or negotiations with the Internal Revenue Service, to exceed the (f) the amount taken into account hereunder at the time the Tax Reimbursement Payment is made (including, but not limited to, by reason of any payment the existence or amount of which cannot be determined at the time of the Tax Reimbursement Payment), the Company shall make an additional Tax Reimbursement Payment in respect of such excess (plus any interest or penalty payable with respect to such excess) at the time that the amount of such excess is finally determined. (ge) The Tax Reimbursement Payment (or any portion thereof) provided for in this Section 9 shall be paid to Employee not later than fifteen (15) days following payment of the Covered Payments; provided, however, that if the amount of such Tax Reimbursement Payment (or any portion thereof) cannot be finally determined on or before the date on which payment is due, the Company shall pay to Employee by such date an amount estimated in good faith by the Accountants to be the minimum amount of such Tax Reimbursement Payment, and shall pay to Employee the remainder of such Tax Reimbursement Payment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined, but in no event later than forty-five (45) days after payment of the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the taxes for which the Tax Reimbursement Payment is being paidrelated Covered Payment. In the event that the amount of the estimated Tax Reimbursement Payment exceeds the amount subsequently determined to have been due, such excess shall be paid constitute a loan by the Company to Employee, payable within fifteen (15) days after written demand by the Company for repayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (h) Notwithstanding anything in this Agreement to the contrary, if applicable, the Company shall not pay Covered Payments and Tax Reimbursement Payments under this Agreement earlier than the earliest date permitted by Section 409A of the Code, or later than the latest date permitted by Section 409A of the Code, if, as determined in the reasonable judgment of outside counsel hired by the Company, payment on the originally scheduled date would cause the Employee to incur adverse tax consequences under Section 409A of the Code. Covered Payments and Tax Reimbursement Payments that are subject to Section 409A of the Code shall only be paid upon an event permitted by Section 409A of the Code, and this Agreement shall be administered consistently with Section 409A of the Code, to the extent applicable.

Tax Reimbursement Payments. In the event that any amount or benefit paid or distributed to Employee pursuant to this Agreement, taken together with any amounts or benefits otherwise paid or distributed to Employee by the Company or its affiliates (collectively, the “Covered Payments”), including, without limitation, any profits realized in respect of the receipt, vesting or exercise of stock options or warrants and similar events, are or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Company shall pay to Employee at the time specified below an additional amount (the “Tax Reimbursement Payment”), such that the net amount retained by Employee with respect to such Covered Payments, after deducting any Excise Tax on the Covered Payments, as well as any Federal, state and local income taxes and Excise Tax on the Tax Reimbursement Payment provided for by this Section 9, but before deduction for any Federal, state or local income or employment tax withholding on such Covered Payments, shall be equal to the amount of the Covered Payments. The Company shall reimburse Employee only as a result of excise taxes imposed under Section 4999 of the Code (or a successor Code provision of comparable intent). (a) For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of such Excise Tax, , (bi) such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of the Company’s independent certified public accountants or tax counsel selected by such Accountants (the “Accountants”), such Covered Payments, in whole or in part, either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to the Excise Tax, and (iii) the value of any non-cash benefits or any deferred payments or benefits shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (cb) For purposes of determining the amount of the Tax Reimbursement Payment, Employee shall be deemed to pay: (i) Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Tax Reimbursement Payment is to be made, and taking into account the effect of loss of the value of itemized deductions and personal exemptions as a result of Employee’s receipt of the Tax Reimbursement Payment; and (ii) any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Tax Reimbursement Payment is to be made, net of the maximum reduction in Federal incomes taxes that could be obtained from the deduction of such state or local taxes if paid in such year. (dc) In the event that the Excise Tax is subsequently determined by the Accountants, or pursuant to any proceeding or negotiations with the Internal Revenue Service, to be less than the amount taken into account hereunder in calculating the Tax Reimbursement Payment made, Employee shall repay to the Company, at the time that the amount of such reduction in the Excise Tax is finally determined, the portion of such prior Tax Reimbursement Payment that would not have been paid if such Excise Tax had been applied in initially calculating such Tax Reimbursement Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any portion of the Tax Reimbursement Payment to be refunded to the Company has been paid to any Federal, state or local tax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to Employee, and interest payable to the Company shall not exceed interest received or credited to Employee by such tax authority for the period it held such portion. Employee and the Company shall mutually agree upon a course of action to be pursued (and the method of allocating the expenses thereof) if Employee’s good faith claim for refund or credit is denied. (ed) In the event that the Excise Tax is later determined by the Accountants, or pursuant to any proceeding or negotiations with the Internal Revenue Service, to exceed the (f) the amount taken into account hereunder at the time the Tax Reimbursement Payment is made (including, but not limited to, by reason of any payment the existence or amount of which cannot be determined at the time of the Tax Reimbursement Payment), the Company shall make an additional Tax Reimbursement Payment in respect of such excess (plus any interest or penalty payable with respect to such excess) at the time that the amount of such excess is finally determined. (ge) The Tax Reimbursement Payment (or any portion thereof) provided for in this Section 9 shall be paid to Employee not later than fifteen (15) days following payment of the Covered Payments; provided, however, that if the amount of such Tax Reimbursement Payment (or any portion thereof) cannot be finally determined on or before the date on which payment is due, the Company shall pay to Employee by such date an amount estimated in good faith by the Accountants to be the minimum amount of such Tax Reimbursement Payment, and shall pay to Employee the remainder of such Tax Reimbursement Payment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined, but in no event later the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the taxes for which the Tax Reimbursement Payment is being paid. In the event that the amount of the estimated Tax Reimbursement Payment exceeds the amount subsequently determined to have been due, such excess shall be paid by the Company to Employee, within fifteen (15) days after written demand by the Company for repayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (hf) Notwithstanding anything in this Agreement to the contrary, if applicable, the Company shall not pay Covered Payments and Tax Reimbursement Payments under this Agreement earlier than the earliest date permitted by Section 409A of the Code, or later than the latest date permitted by Section 409A of the Code, if, as determined in the reasonable judgment of outside counsel hired by the Company, payment on the originally scheduled date would cause the Employee to incur adverse tax consequences under Section 409A of the Code. Covered Payments and Tax Reimbursement Payments that are subject to Section 409A of the Code shall only be paid upon an event permitted by Section 409A of the Code, and this Agreement shall be administered consistently with Section 409A of the Code, to the extent applicable.