Common use of Xxxxx-Up Payment Clause in Contracts

Xxxxx-Up Payment. Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any payment or distribution by Company and any of its subsidiaries and affiliates to or for the benefit of Maddy (whether paid or payable or distributed or distributable pursuant to this Agreement, the Supplemental Retirement Agreement between Company and Maddy, the Employment Agreement between Company and Maddy, or any other agreement, contract, plan or arrangement, but determined without regard to any additional payments required under this Paragraph J) (any such payments and distributions collectively referred to as “Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any similar tax that may hereinafter be imposed or any interest and penalties 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 Company shall pay to Maddy an additional payment (the “Gross-Up Payment”) equal to one hundred percent (100%) of the Excise Tax and one hundred percent (100%) of the amount of any federal, state and local income taxes and Excise Tax imposed on the Gross-Up Payment. All determinations required to be made under this Paragraph J, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the firm of independent accountants selected by Company to audit its financial statements (the “Accounting Firm”) which shall provide detailed supporting calculations both to Company and Maddy in good faith within a reasonable time period. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting a “change in control,” Maddy 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 solely by Company. Any Gross-Up Payment, as determined pursuant to this Paragraph J, shall be paid to Maddy within 30 days of the receipt of the Accounting Firm’s determination.

Xxxxx-Up Payment. Notwithstanding anything in this Agreement to the contrary, in In the event it shall be determined that any payment or distribution by Company and of any of its subsidiaries and affiliates type to or for the benefit of Maddy the Employee, by Westport, any Affiliate, any person who acquires ownership or effective control of Westport or ownership of a substantial portion of Westport’s assets (within the meaning of Section 280G of the Code and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement or otherwise (the Supplemental Retirement Agreement between Company and Maddy, the Employment Agreement between Company and Maddy, or any other agreement, contract, plan or arrangement, but determined without regard to any additional payments required under this Paragraph J) (any such payments and distributions collectively referred to as “Total Payments”), would is or will be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any similar tax that may hereinafter be imposed or any interest and or penalties 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 Company the Employee shall pay be entitled to Maddy receive an additional payment (the a “Gross-Up Payment”) equal in an amount such that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to one hundred percent (100%) of the such taxes), including any income tax, employment tax or Excise Tax and one hundred percent (100%) of the amount of any federalTax, state and local income taxes and Excise Tax imposed on upon the Gross-Up Payment. All determinations required to be made under this Paragraph J, including whether a the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. Notwithstanding the foregoing provisions of this Section 6(a), if it shall be determined that the Employee is required and the amount of such entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the portion of the Total Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the firm payment under Section 4(a), unless an alternative method of independent accountants selected reduction is elected by Company the Employee. For purposes of reducing the Total Payments to audit its financial statements the Safe Harbor Cap, only amounts payable under this Agreement (the “Accounting Firm”and no other amounts) which shall provide detailed supporting calculations both to Company and Maddy in good faith within a reasonable time period. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting a “change in control,” Maddy 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 solely by Company. Any Gross-Up Payment, as determined pursuant to this Paragraph J, shall be paid to Maddy within 30 days of the receipt of the Accounting Firm’s determinationreduced.

Xxxxx-Up Payment. Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any payment or distribution by Company United, Bank and any of its other subsidiaries and affiliates of United and Bank to or for the benefit of Maddy Xxxxx (whether paid or payable or distributed or distributable pursuant to this Agreement, the Supplemental Retirement Agreement between Company United and Maddy, the Employment Agreement between Company and Maddy, Xxxxx or any other agreement, contract, plan or arrangement, but determined without regard to any additional payments required under this Paragraph JArticle VI) (any such payments and distributions collectively referred to as “Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any similar tax that may hereinafter be imposed or any interest and penalties 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 Company United shall pay to Maddy Xxxxx an additional payment (the “Gross-Up Payment”) equal to one hundred percent (100%) of the Excise Tax and one hundred percent (100%) of the amount of any federal, state and local income taxes and Excise Tax imposed on the Gross-Up Payment. All determinations required , all provided that any and all such Gross-Up Payment or Payments shall be paid to be made under this Paragraph J, including whether a Xxxxx no later than the last day of Xxxxx’ taxable year next following the taxable year in which Xxxxx remits the Excise Taxes with respect to which such Gross-Up Payment is required made and all subject to the amount provisions of such Section III G so that in the event that any Gross-Up PaymentPayment would be payable hereunder on or before the date which is six months after a Separation of Service of Xxxxx other than by death, such payment shall instead be made on the date which is six months after the date of such Separation of Service of Xxxxx other than by the firm of independent accountants selected by Company to audit its financial statements (the “Accounting Firm”) which shall provide detailed supporting calculations both to Company and Maddy in good faith within a reasonable time period. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting a “change in control,” Maddy 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 solely by Company. Any Gross-Up Payment, as determined pursuant to this Paragraph J, shall be paid to Maddy within 30 days of the receipt of the Accounting Firm’s determinationdeath.