Common use of Xxxxx-Up Payment Clause in Contracts

Xxxxx-Up Payment. i. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it shall be determined that any amount paid, distributed or treated as paid or distributed by the Company to or for Executive’s benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 9 and after any reduction determined pursuant to section 8.A.ix., if applicable,) (a “Payment”) would be subject the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive (a) an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; and (b) an amount such that, after providing for all federal, state and local taxes payable by the Executive as a result of the payment provided for in this clause 9.A.i.(b) (including, without limitation, any resulting additional excise tax on Excess Parachute Payments), the Executive retains an amount equal to the product of (i) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income multiplied by (ii) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made . ii. All determinations required to be made under this Section 9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or, if it is unable to do so, by such other nationally recognized accounting firm as may be designated by Executive (Ernst & Young LLP or such other firm shall hereinafter be referred to as the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9.B. and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Executive or for Executive’s benefit.

Xxxxx-Up Payment. i. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it shall be determined that any amount paid, distributed or treated as paid or distributed by the Company to or for Executive’s benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 9 and after any reduction determined pursuant to section 8.A.ix., if applicable,9) (a “Payment”) would be subject the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive (a) an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; and (b) an amount such that, after providing for all federal, state and local taxes payable by the Executive as a result of the payment provided for in this clause 9.A.i.(b) (including, without limitation, any resulting additional excise tax on Excess Parachute Payments), the Executive retains an amount equal to the product of (i) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income multiplied by (ii) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made made. ii. All determinations required to be made under this Section 9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or, if it is unable to do so, by such other a nationally recognized accounting firm as may be designated by Executive (Ernst & Young LLP or such other firm shall hereinafter be referred to as the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9.B. and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Executive or for Executive’s benefit.

Xxxxx-Up Payment. i. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if If it shall be determined that any amount paid, distributed or treated as paid or distributed by the Company Purchaser to or for Executive’s the benefit of the Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, any stock option agreement between the Employee and the Purchaser or otherwise, but determined without regard to any additional payments required under this Section 9 and after any reduction determined pursuant to section 8.A.ix., if applicable,6) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any interest or penalties are incurred by Executive the Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are being hereinafter collectively referred to as the “Excise Tax”), then Executive the Employee shall be entitled to receive (a) an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive the Employee of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including, including without limitation, any income taxes (and including any interest and or penalties imposed with respect thereto) and Excise Tax imposed upon on the Gross-Up Gross up Payment, Executive the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; and (b) an amount such that, after providing for all federal, state and local taxes payable by the Executive as a result of the payment provided for in this clause 9.A.i.(b) (including, without limitation, any resulting additional excise tax on Excess Parachute Payments), the Executive retains an amount equal to the product of (i) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income multiplied by (ii) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made . ii. All The determinations required to be made under this Section 9, including of whether and when a Gross-Up Payment is required and under this Section 6 shall be made by independent tax counsel (the “Tax Counsel”) based on its good faith interpretation of applicable law. The amount of such Gross-Up Payment and the valuation assumptions to be utilized in arriving at such determination, determination shall be made by Ernst & Young LLP or, if it is unable to do so, by such other an independent nationally recognized accounting firm as may be designated by Executive (Ernst & Young LLP or such other firm shall hereinafter be referred to as the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company Purchaser and Executive the Employee within 15 business days of the receipt of notice from Executive the Employee that there has been a Payment, or such earlier time as is requested by the CompanyPurchaser. In the event that the The Tax Counsel and Accounting Firm is serving as accountant or auditor for shall be appointed by the individual, entity or group effecting Purchaser after consultation in good faith with the Change in Control, Executive shall appoint another nationally recognized accounting firm Employee and subject to make the determinations required hereunder approval of the Employee (which accounting firm approval shall then not be referred to as the Accounting Firm hereunderunreasonably withheld). All fees and expenses of the any Tax Counsels and Accounting Firm Firms referred to above shall be borne by the CompanyPurchaser. Any Gross-Up Payment, as determined pursuant to this Section 96, shall be paid by the Company Purchaser to Executive the Employee within five ten (10) days of the receipt of the Accounting Firm’s determination. Any determination determinations by the Tax Counsel and Accounting Firm shall be binding upon the Company Purchaser and Executivethe Employee, provided, however, if it is later determined that there has been an underpayment of Excise Tax and that the Employee is required to make an additional Excise Tax payment(s) on any Payment or Gross-Up Payment, the Purchaser shall provide a similar full gross up on such additional liability. iii. As a result For purposes of any determinations made by any Tax Counsel and Accounting Firm acting under Section 6.a.ii.: (A) All Payments and Gross Up Payments with respect to the Employee shall be deemed to be “parachute payments” under Section 280G(b) (2) of the uncertainty in Code and to be “excess parachute payments” under Section 280G(b) (1) of the application of Code that are fully subject to the Excise Tax under Section 4999 of the Code Code, except to the extent (if any) that such Tax Counsel determines in writing in good faith that a Payment in whole or in part does not constitute a “parachute payment” or otherwise is not subject to Excise Tax; (B) The value of any non-cash benefits or deferred or delayed payments or benefits shall be determined in a manner consistent with the principles of Section 280G of the Code; and (C) The Employee shall be deemed to pay federal, state and local income taxes at the time of actual maximum marginal rate applicable to individuals in the initial determination by calendar year in which the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”)Payment is made, consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9.B. and Executive thereafter is required to make a payment net of any Excise Tax, applicable reduction in federal income taxes for any state and local taxes paid on the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Executive or for Executive’s benefitamounts in question.

Xxxxx-Up Payment. i. Anything in this Agreement Following any termination of employment, United will cause a nationally recognized accounting firm (the "Accountant"), acceptable to Executive, to promptly review, at United's sole expense, the contrary notwithstanding and except as set forth below, if it shall be determined that applicability of Code section 4999 to any amount paid, distributed payment or treated as paid or distributed distribution of any type by the Company United to or for Executive’s the benefit (whether paid or payable or distributed or distributable of the Executive pursuant to Section 5(e), or otherwise (the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 9 and after any reduction determined pursuant to section 8.A.ix., if applicable,) (a “Payment”) would be subject "Total Payments"). If the Accountant determines that the Total Payments result in an excise tax imposed by Section Code section 4999 of the Code or any comparable state or local law, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to herein as the “"Excise Tax”"), then Executive shall be entitled to receive (a) United will make an additional cash payment (a “"Gross-Up Payment”") in to the Executive within ten (10) days after such determination equal to an amount such that after payment by the Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), includingincluding any Excise Tax, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains would retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments; and (b) an amount such that. For purposes of the foregoing determination, after providing for all federal, the Executive's tax rate will be deemed to be the highest statutory marginal state and local taxes payable federal tax rate (on a combined basis) then in effect. If no determination by the Accountant is made prior to the time the Executive as is required to file a result of tax return reflecting the payment provided for in this clause 9.A.i.(b) (including, without limitation, any resulting additional excise tax on Excess Parachute Total Payments), the Executive retains an amount equal will be entitled to the product of (i) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income multiplied by (ii) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made . ii. All determinations required to be made under this Section 9, including whether and when receive from United a Gross-Up Payment calculated on the basis of the Excise Tax the Executive reported in such tax return, within ten (10) days after the later of the date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to United. In all events, if any tax authority determines that a greater Excise Tax should be imposed upon the Total Payments than is required and determined by the amount of such Accountant or reflected in the Executive's tax return pursuant to this paragraph, the Executive will be entitled to receive from United the full Gross-Up Payment and calculated on the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or, if it is unable to do so, by such other nationally recognized accounting firm as may be designated by Executive (Ernst & Young LLP or such other firm shall hereinafter be referred to as the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days basis of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9.B. and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any Excise Tax determined to be payable by such Underpayment shall be promptly paid by the Company to tax authority within ten (10) days after the Executive or for Executive’s benefitnotifies United of such determination.

Xxxxx-Up Payment. i. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it shall be determined that any amount paid, distributed or treated as paid or distributed by the Company to or for Executive’s benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 9 and after any reduction determined pursuant to section 8.A.ixSection 9.A.vii., if applicable,) (a “Payment”) would be subject the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive (a) an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; and (b) an amount such that, after providing for all federal, state and local taxes payable by the Executive as a result of the payment provided for in this clause 9.A.i.(b) (including, without limitation, any resulting additional excise tax on Excess Parachute Payments), the Executive retains an amount equal to the product of (i) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income multiplied by (ii) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made . ii. All determinations required to be made under this Section 910, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or, if it is unable to do so, by such other nationally recognized accounting firm as may be designated by Executive (Ernst & Young LLP or such other firm shall hereinafter be referred to as the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to this Section 910, shall be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9.B. 10.B. and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Executive or for Executive’s benefit.

Xxxxx-Up Payment. i. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it shall be determined that any amount paid, distributed or treated as paid or distributed by the Company to or for Executive’s benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 9 and after any reduction determined pursuant to section 8.A.ix., if applicable,9) (a “Payment”) would be subject the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive (a) an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; and (b) an amount such that, after providing for all federal, state and local taxes payable by the Executive as a result of the payment provided for in this clause 9.A.i.(b) (including, without limitation, any resulting additional excise tax on Excess Parachute Payments), the Executive retains an amount equal to the product of (i) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income multiplied by (ii) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made . ii. All determinations required to be made under this Section 9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or, if it is unable to do so, by such other a nationally recognized accounting firm as may be designated by Executive (Ernst & Young LLP or such other firm shall hereinafter be referred to as the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9.B. 9 (B) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Executive or for Executive’s benefit.

Xxxxx-Up Payment. i. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it shall be determined that any amount paid, distributed or treated as paid or distributed by the Company to or for Executive’s benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 9 and after any reduction determined pursuant to section 8.A.ix., if applicable,) (a “Payment”) would be subject the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive (a) an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; and (b) an amount such that, after providing for all federal, state and local taxes payable by the Executive as a result of the payment provided for in this clause 9.A.i.(b) (including, without limitation, any resulting additional excise tax on Excess Parachute Payments), the Executive retains an amount equal to the product of (i) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income multiplied by (ii) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made ... ii. All determinations required to be made under this Section 9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or, if it is unable to do so, by such other nationally recognized accounting firm as may be designated by Executive (Ernst & Young LLP or such other firm shall hereinafter be referred to as the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9.B. and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Executive or for Executive’s benefit.

Xxxxx-Up Payment. i. Anything in this Agreement (i) Following any termination of employment during the Employment Period, United will cause a nationally recognized accounting firm (the "Accountant"), acceptable to the contrary notwithstanding Executive, to promptly review, at United's sole expense, the applicability of Sections 280G and except as set forth below4999 of the Code to any payment, if it shall be determined that distribution, benefit or entitlement of any amount paid, distributed type by United or treated as paid or distributed by the Company any affiliate to or for Executive’s the benefit (whether paid or payable or distributed or distributable of the Executive pursuant to the terms Section 5(e) of this Agreement Agreement, and any other payment, distribution, benefit or otherwiseentitlement to or for the benefit of the Executive (including any payment, but determined without regard distribution, benefit or entitlement made by any person or entity effecting a Change of Control) that could be considered a "parachute payment" within the meaning of Section 280G of the Code (the "Total Payments"). (ii) Subject to any additional payments required under this Section 9 and after any reduction determined pursuant to section 8.A.ix.5(g)(iii), if applicable,) (a “Payment”) would be subject the Accountant determines that the Total Payments result in an excise tax imposed by Section 4999 of the Code or any comparable state or local law, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to herein as the “"Excise Tax”"), then Executive shall be entitled to receive (a) United will make an additional cash payment (a “"Gross-Up Payment”") in to the Executive within ten (10) days after such determination equal to an amount such that after payment by the Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), includingincluding any Excise Tax, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains would retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments; and (b) an amount such that. For purposes of the foregoing determination, after providing for all federal, the Executive's tax rate will be deemed to be the highest statutory marginal state and local taxes payable federal tax rate (on a combined basis) then in effect. If no determination by the Accountant is made prior to the time the Executive as is required to file a result of tax return reflecting the payment provided for in this clause 9.A.i.(b) (including, without limitation, any resulting additional excise tax on Excess Parachute Total Payments), the Executive retains an amount equal will be entitled to the product of (i) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income multiplied by (ii) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made . ii. All determinations required to be made under this Section 9, including whether and when receive from United a Gross-Up Payment calculated on the basis of the Excise Tax the Executive reported in such tax return, within ten (10) days after the later of the date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to United. In all events, if any tax authority determines that a greater Excise Tax should be imposed upon the Total Payments than is required and determined by the Accountant or reflected in the Executive's tax return pursuant to this paragraph, the Executive will be entitled to receive from United the full Gross-Up Payment calculated on the basis of the amount of the Excise Tax determined to be payable by such tax authority within ten (10) days after the Executive notifies United of such determination. If, after the payment by United of any Gross-Up Payment pursuant to this Section 5(g)(ii), the Executive becomes entitled to receive any refund with respect to such payment, the Executive shall pay to United the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto) within ten (10) days of the Executive's receipt of such refund. (iii) Notwithstanding any provision of this Section 5(g), if it shall be determined (by the reasonable computation of the Accountant, which determination shall be certified by the Accountant and set forth in a certificate delivered to the Executive) that the aggregate amount of the Total Payments that, but for this Section 5(g)(iii), would be payable to the Executive, does not exceed 110% of the greatest amount of Total Payments that could be paid to the Executive without giving rise to any liability for the Excise Tax in connection therewith (such greatest amount, the "Floor Amount"), then: (A) no Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made to the Executive; and (B) the aggregate amount of Total Payments payable to the Executive shall be reduced (but not below the Floor Amount) to the largest amount which would both (1) not cause any Excise Tax to be payable by Ernst & Young LLP orthe Executive, if it is unable and (2) not cause any portion of the Total Payments to do sobecome nondeductible by reason of Section 280G of the Code (or any successor provision). Unless the Executive shall have given prior written notice specifying a different order to United to effectuate the foregoing, United shall reduce or eliminate the Total Payments, by such other nationally recognized accounting firm as may first reducing or eliminating the portion of the Total Payments that are payable in cash and then by reducing or eliminating the non-cash payments, in each case in reverse order beginning with payments or benefits that are to be designated by Executive (Ernst & Young LLP or such other firm shall hereinafter be referred to as paid the “Accounting Firm”) which shall provide detailed supporting calculations both farthest in time from the date that the Accountant delivers the certificate to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid 5(g)(iii). Any notice given by the Company to Executive within five days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9.B. and Executive thereafter is required to make a payment the preceding sentence shall take precedence over the provisions of any Excise Taxother plan, arrangement or agreement governing the Accounting Firm shall determine the amount of the Underpayment that has occurred Executive's rights and entitlements to any such Underpayment shall be promptly paid by the Company to the Executive benefits or for Executive’s benefitcompensation.

Xxxxx-Up Payment. i. Anything in this Agreement to In the contrary notwithstanding and except as set forth below, if event it shall be determined that any amount paidcompensation, distributed payment or treated as paid or distributed distribution by the Company to or for Executive’s the benefit (of Xx. Xxxxx, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise (the “Severance Payments”), but determined without regard to any additional payments required under this Section 9 and after any reduction determined pursuant to section 8.A.ix., if applicable,) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code Code, or any interest or penalties are incurred by Executive Xx. Xxxxx with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Executive Xx. Xxxxx shall be entitled to receive (a) an additional payment (a “Gross-Up Payment”) in an amount such that the net amount retained by Xx. Xxxxx, after payment by Executive deduction of all federalany Excise Tax on the Severance Payments, state any Federal, state, and local taxes (including any interest or penalties imposed with respect to such taxes)income tax, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) employment tax and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the amount Xx. Xxxxx would have received had there been no Excise Tax imposed upon on the Severance Payments; and (b) an amount such that, after providing for all federal, state and local taxes payable by the Executive as a result of the payment provided for in this clause 9.A.i.(b) (including, without limitation, any resulting additional excise tax on Excess Parachute Payments), the Executive retains an amount equal to the product of (i) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income multiplied by (ii) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made . ii. All determinations required to be made under this Section 9subparagraph (b), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinationPayment, shall be made by Ernst & Young LLP or, if it is unable to do so, by such other a nationally recognized accounting firm as may be designated selected by Executive the Company (Ernst & Young LLP or such other firm shall hereinafter be referred to as the “Accounting Firm”) which shall provide detailed supporting calculations both to ). For purposes of determining the Company and Executive within 15 business days amount of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, Xx. Xxxxx shall be paid by deemed to pay Federal income taxes at the Company highest marginal rate of Federal income taxation applicable to Executive within five days individuals for 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 individual taxation in the state and locality of Xx. Xxxxx’x residence on the date of the receipt Terminating Event, net of the Accounting Firm’s determinationmaximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Company and ExecutiveXx. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9.B. and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Executive or for Executive’s benefitXxxxx.